Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
[85 NJSuper Page 268] Defendants Christopher Diner, Inc. and Michael Christopher, individually, appeal from a summary judgment entered in favor of plaintiffs in the Law Division which reversed the decision of the Union Township
Board of Adjustment granting defendants permission to receive a building permit for a diner-type restaurant. The court also directed the township inspector to revoke the permit he had issued after the board handed down its decision.
Christopher Diner, Inc. and Michael Christopher had applied to the building inspector for a permit to erect a diner at Chestnut Street and Tucker Avenue in Union Township. The lot in question is five-sided, with a 186.32' frontage on Chestnut Street, a 178.62' frontage on Tucker Avenue, and the other three sides measuring 100', 99.5' and 89.91'. The proposed structure will occupy 15% of the area, the rest being devoted to plantings and parking. The intention of the applicants is to move their existing stainless steel diner, measuring 33'4" X 50', from Central Avenue, Newark, and install it on a 12" thick masonry foundation, the cellar being 7'6" deep. They also propose to build a 17'4" X 50' kitchen addition as a permanent installation, so that the final structure will measure 50'8" X 50'. The building will be permanently connected to all necessary utilities. The installation cost will be between $35,000 and $40,000 and, adding the cost of the diner itself, the new structure will have a value in excess of $200,000. It will seat 100 people and feature as complete a menu as restaurants offer.
The building inspector refused to issue a permit for the diner-restaurant because he considered it a violation of Article VII, paragraph 3, and Article VIII, paragraph 1, of the township zoning ordinance. Christopher and the corporation then appealed to the board of adjustment, seeking relief under N.J.S.A. 40:55-39(a) which empowers the board to hear and decide appeals where error is alleged in any order, requirement, decision or refusal made by an administrative official in the enforcement of a zoning ordinance. In the alternative, they sought a variance under N.J.S.A. 40:55-39(d), which authorizes the board to recommend to the governing body, in particular cases and for special reasons, the grant of a variance to allow a structure or use in a district restricted against such structure or use. This application for a variance
was definitely abandoned at the hearing before the board of adjustment.
Union Township's zoning ordinance was adopted in 1929, and the sections hereinafter referred to have remained unchanged. The premises in question are located in a business B district. Article VIII provides that in any such district no building or premises shall be used, and no building shall be erected or altered, which is arranged, intended or designed to be used except for one or more of the following purposes or uses:
"1. Any use permitted pursuant to * * * Article VII., relating to Business 'A' Districts."
Article VII permits the following uses in a business A district, in addition to retail stores:
"3. Banks and fiduciary institutions; offices, business or vocational schools; personal service establishments, such as tailor shops, shoe or cobbler shops, barber shops, beauty parlors, restaurants or other eating places, not, however, including lunch wagons and not including dining cars." (Italics ours)
In denying the requested permit the building inspector obviously considered the proposed structure to be a lunch wagon or dining car, rather than a "restaurant or other eating place."
The main witness at the hearing before the board of adjustment was appellants' expert, James Montano, who has designed and sold diners for some 20 years. He was familiar with appellants' proposed structure and operation, as well as similar operations in the township, having designed and built some of the dining facilities there. He explained that a lunch wagon was originally a horse-drawn vehicle, moving from location to location to serve, primarily, coffee and doughnuts to workers. In the case of railroad workers, this operation was eventually transferred to some abandoned railroad car from which a limited menu was ...