For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J. Weintraub, C.J., and Jacobs and Francis, JJ., concurring in result.
[42 NJ Page 326] The Board of Adjustment of the Borough of Saddle River denied plaintiffs' application for a variance under N.J.S.A. 40:55-39(c) and (d) for construction of a fallout shelter which violated the 40-foot side yard requirements of the zoning ordinance of the borough.*fn1 The plaintiffs filed a complaint against the board and the building inspector of the borough in the Superior Court, Law Division, requesting a declaration that the shelter was not a structure within the meaning of the ordinance and alternatively alleging that denial of the variance was improper. That court entered judgment for the defendants, and plaintiffs appealed to the
Appellate Division. The matter was certified by this court prior to argument there.
The plaintiffs are the owners of a home and lot approximately two acres in area in the "A" residence district of the Borough of Saddle River. On November 25, 1961, without first obtaining a building permit, they commenced construction of a fallout shelter consisting of an Armco steel cylinder to be set into a trench, covered with several feet of soil and landscaped on top. On November 27, when the floor of the shelter was in place and part of the sides were up, the building inspector visited the premises and told the plaintiffs that a building permit was required for the construction of the shelter. He alerted them to the possibility of error in the location of the shelter and requested that the measurements from the side yard line be rechecked. Plaintiffs remeasured the location of the shelter from stakes which had been pointed out to them by a prior owner as marking the side lot line. On November 29 plaintiffs filed sketches and an application for a building permit which located the shelter 45 feet from the side line, and a permit was forthwith issued. Subsequently the building inspector again informed the plaintiffs that he had received complaints that the shelter was too close to the side lot line and requested that the location of the shelter be verified. On December 6, 1961 plaintiffs wrote the inspector informing him that they had again remeasured the side line and that the shelter was 40 feet from the line. In January plaintiffs were informed that a survey conducted for the next-door neighbor indicated the shelter was in violation of the side yard requirement of the ordinance, and plaintiffs immediately requested a resurvey from their surveyors. This resurvey was made in February and confirmed that the location of the shelter, which was then 7/8ths completed, violated the ordinance. The resurvey showed that the rear stake from which plaintiffs had measured was incorrectly located. The borough engineer also surveyed the land on March 16 and located the shelter 25 feet from the side line. The building inspector then advised the plaintiffs that the shelter violated
the zoning ordinance and that it must either be removed or a variance obtained. Plaintiffs thereupon applied to the board of adjustment for a variance. Following a hearing, the variance was denied on the ground that undue hardship had not been shown.
Plaintiffs initially contend that their fallout shelter is not a building or structure within the meaning of the zoning ordinance and that therefore no variance was required. Defendants argue that the word "structure" used in the ordinance is broad enough to encompass fallout shelters, that it was the intention of the drafters to control the location of all structures, and that the ordinance should be interpreted as encompassing fallout shelters.
The aim of the court in construing ordinances, like statutes, is to determine the legislative intent. Zoning ordinances are to receive a reasonable construction and application, and under the Constitution of 1947, Art. IV, § VII, par. 11, they are to be liberally construed in favor of the municipality. "The will of the lawgiver is to be gathered from the object and nature of the subject matter, the contextual setting, and the mischief felt and the remedy in view." San-Lan Builders v. Baxendale, 28 N.J. 148, 155 (1958). When the Saddle River ordinance was adopted in 1930 fallout shelters were virtually unknown and were not within the specific contemplation of the governing body. But, "it is an established rule of statutory construction that a statute written in general terms will be given prospective application to situations unknown or nonexistent at the time of its enactment which are within its general purview and scope where the language fairly includes them." Safeway Trails, Inc. v. Furman, 41 N.J. 467, 477 (1964). Our inquiry is thus twofold: Are fallout shelters within the general purview and scope, or purpose, of the ordinance, and does the word "structure" fairly include them?
There can be little doubt that in its broad sense the word "structure" includes a fallout shelter. In Moore v. Bridgewater Township, 69 N.J. Super. 1, 22 (App. Div.
1961), "structure" is broadly defined as any production or piece of work artificially built up or composed of parts and joined together in some definite manner. And we note that the Legislature in providing certain tax exemptions for fallout shelters used the word "structure" in defining a fallout shelter. N.J.S.A. 54:4-3.49. Thus the word "structure" in the zoning ordinance should be construed to encompass fallout shelters if they are within the general purview and scope of the ordinance.
The purpose of the ordinance is to regulate the use of land and the location of structures thereon. Within the "A" residence zone two side yards are required, each of a minimum width of 40 feet, and no building, garage, outbuilding, swimming pool or other structure may be erected within the required side yard. Side yard restrictions provide open, unoccupied space for several purposes, including rest and recreation, and they enhance the appearance of the neighborhood and thus conserve the value of property. See Loveladies Property etc. v. Barnegat City, 60 N.J. Super. 491, 499 (App. Div. 1960). Any structure which interferes with the open, unobstructed space requirement would be within the intendment of and prohibited by the restriction. Does the plaintiffs' shelter violate the legislative intention to provide open, unobstructed space?
The shelter is a steel cylinder 24 feet long, 12 feet wide and 8 feet high. While part of it is beneath the ground level, it is apparent from the testimony and the photographs in evidence that much of it extends above the normal ground level. It is, however, covered with soil and landscaped on top. In other words, as described in the record, it gives the appearance of "a small quonset hut that is covered with earth." We think that this artificial addition to the land which extends substantially above the pre-existing ground level, even though covered with soil, ...