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Capman v. Long Beach Township

Decided: June 23, 1967.

JOHN M. CAPMAN T/A CAPMAN REAL ESTATE AND C & K CORPORATION, PLAINTIFFS - APPELLANTS,
v.
LONG BEACH TOWNSHIP, ZONING BOARD OF ADJUSTMENT OF LONG BEACH TOWNSHIP AND BERNARD J. TOOL, JR., BUILDING INSPECTOR AND ZONING OFFICER OF LONG BEACH TOWNSHIP, DEFENDANTS - RESPONDENTS



Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Sullivan, S.j.a.d.

Sullivan

Plaintiffs appeal from a summary judgment entered by the trial court upholding a ruling of the Board of Adjustment of Long Beach Township. In substance, the board ruled that plaintiff John M. Capman (hereinafter Capman) could not operate a real estate office out of his residence since it was not a "professional office" under the township zoning ordinance.

The basic facts are undisputed. Capman is the owner of, and resides in, a one-family home in a B residence zone in the township. (Actually, legal title to the property is in plaintiff C & K Corporation, 98% of the capital stock of which is owned by Capman.) Under the zoning ordinance the permitted uses in a B residence zone include:

"* * * (c) Professional office as accessory use provided that not more than 20% of total floor areas of any building be used for such an office."

The ordinance defines a "Professional Office" as:

"The office or studio of a physician or surgeon, dentist, artist, lawyer, architect, engineer, surveyor, or like professional person residing on the premises."

Capman seeks to maintain a real estate office in his home. The issue is whether such an office is a "professional office" within the meaning of the ordinance.

The board of adjustment ruled that (1) the professional exception as set forth in the ordinance did not extend to the practice of real estate, whether or not it be regarded as a profession, and (2) the operation of his office, as described by plaintiff and his associate, exceeded any use intended to be granted by the ordinance to a professional person in a residential zone.

In a suit in lieu of prerogative writs challenging the aforesaid ruling, the Superior Court, Law Division, held that the maintenance of a real estate office "does not fit" within the

category of professional office as defined in the ordinance. Summary judgment was entered in favor of defendants.

Plaintiff's challenge the status of the resident taxpayer of the township who brought the matter before the board of adjustment on the ground that the taxpayer did not reside within 200 feet of the subject property and was not a "person aggrieved" under the statute and ordinance. However, we agree with the trial court that this contention was not raised in the "in lieu" complaint and is not an issue in the case. We proceed to the meritorious question.

Plaintiffs contend that a real estate office falls within the definition of professional office as set forth in the ordinance, or that at least a question of fact is presented as to whether the scope and type of Capman's business operation is such that ...


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