Goldmann, Lewis and Matthews. The opinion of the court was delivered by Lewis, J.A.D. Matthews, J.A.D. (concurring).
Plaintiffs Jack and Maxine Angel appeal from a summary judgment in favor of defendant Board of Adjustment of the Township of Franklin. The Law Division upheld the board in refusing to approve the construction of, or recommend a use variance for, a driveway designed to aid ingress and egress to a nonconforming mobile home park.
It appears from the record that in 1964 plaintiffs purchased lot 16 in block 17, shown on the township tax map
as containing 6.25 acres, located on the southerly side of State Highway 24. The lot has highway frontage of approximately 119 feet and is used as a trailer park, a use prohibited by the township zoning ordinance; the park, however, is in lawful operation as a pre-existing, nonconforming use. In 1967 there was but one driveway serving the premises which accommodated approximately 50 mobile homes. Concerned about the safety hazards, not only to the residents of the park, but to other motorists using Route 24, the State Highway Department requested that the driveway be widened. The enlargement thereof would have involved the removal of a tree and the relocation of a utility pole.
Plaintiffs, however, desirous of constructing a second driveway, thereby permitting one for ingress and the other for egress, purchased lots 18 (approximately 33' X 167') and 19 (64' X 300', the rear thereof abutting a portion of lot 16), in block 17, located in a commercial zone which does not permit mobile home parks. On July 31, 1967 the township committee, at a meeting attended by Jack Angel, considered the proposed driveway. The committee expressed its concern for the purposes of the zoning plan "to reduce the number and closeness of access points along the highway right-of-way" and indicated an awareness that the probable heavy use of a new access driveway would severely inconvenience, and be a detriment to, the home owner of lot 20. A unanimous resolution, disapproving plaintiffs' proposal, was thereupon adopted.
Notwithstanding that decision by the township, plaintiffs obtained an access permit from the New Jersey State Highway Department for the contemplated new driveway. The permit, however, contained a condition that it was "subject to all local municipal ordinances, rules and regulations." When plaintiffs disregarded the municipal action and constructed the disapproved driveway, they were advised by the building inspector that it violated the township zoning ordinance.
The matter was then presented to the board of adjustment which, after three public hearings, found that the driveway was a structure and constituted an accessorial use serving a nonconforming use, and that its existence and use contravened the zoning ordinance. In the board's view, the preferable solution was to widen the original driveway or construct another one, all on lot 16. Accordingly, a use variance recommendation was denied. The board resolved that the requested variance could not be granted "without substantial detriment to the public good" and that it would "substantially impair the intent and purpose of the zone plan and zoning ordinance."
Plaintiffs contend here, as they did before the trial court, that the new driveway is neither a "structure" nor an "accessory use"; intensification of the nonconforming use should be permitted in the instant circumstances and, in any event, a use variance is an unnecessary prerequisite.
In Place v. Bd. of Adjust. of Saddle River , 42 N.J. 324, 328 (1964), our Supreme Court held that the word "structure" includes a fallout shelter. In that case "structure" was broadly defined "as any production or piece of work artificially built up or composed of parts and joined together in some definite manner." (at 329) Accord, Black's Law Dictionary (4th ed. 1951) 1592. Other decisions consonant with that definition include Moore v. Bridgewater Tp. , 69 N.J. Super. 1, 22 (App. Div. 1961) (a zoning case that involved a stone crusher and electrical power equipment); Duke v. Tracy , 105 N.J. Super. 442, 446 (Ch. Div. 1969) (public walk requiring paving of some sort held to be a structure); City of Rock Island v. Industrial Commission , 287 Ill. 76, 122 N.E. 82, 83 (Sup. Ct. 1919) (an asphalt street deemed a structure within Workmen's Compensation Act). We hold that the instant driveway is a structural appurtenance attached to land.
It is urged by plaintiffs that since lots 18 and 19 are zoned commercially, and since it is reasonable to assume that driveways may be ...