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Bonsall v. Township of Mendham

Decided: October 15, 1971.

HARRISON H. BONSALL, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP OF MENDHAM, A MUNICIPAL CORPORATION OF THE COUNTY OF MORRIS AND STATE OF NEW JERSEY; THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MENDHAM; ELWOOD B. FAKE, BUILDING INSPECTOR OF THE TOWNSHIP OF MENDHAM, AND THE SEEING EYE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiff appeals from an adverse judgment on his complaint in lieu of prerogative writs. In essence he challenges the granting of a variance authorizing the construction of a 20' x 70' building enclosure over a dog run located on property of The Seeing Eye, Inc. (Seeing Eye), and a resolution of the township committee permitting two other kennel buildings constructed in 1963 and 1966, for which no certificate of occupancy had been issued, to remain on the Seeing Eye premises.

Seeing Eye is a nationally known philanthropic and charitable corporation which trains Seeing Eye dogs for use by blind people and teaches blind people to use them. Most of the dogs required for its program are raised on the 100-acre farm tract here involved, located on Ironia Road in Mendham Township. When the property was acquired in 1948 it was zoned residential, and an amendment to the zoning ordinance added as a residential use "the scientific breeding and raising of dogs for philanthropic and charitable purposes * * *." Seeing Eye thereafter proceeded to develop and use the property for the selective breeding of dogs. In general, puppies would be kept on the property

only until they were eight to ten weeks old, with a possibility of their return later for x-rays. The facilities when filled to capacity would hold 93 puppies and 96 mature dogs, but so far as the record before us reveals there were never that many dogs on the premises at one time. In 1967 7 males and 29 females produced 134 puppies over the entire year.

In 1958 plaintiff Harrison H. Bonsall became the owner of a dwelling located on Ironia Road, some 700 feet from the nearest Seeing Eye building. He testified he purchased without knowledge that the kennels were there. In 1961 a new zoning ordinance was enacted in which the provision which permitted the scientific breeding and raising of dogs for philanthropic and charitable purposes as a residential use was omitted. In 1963 and again in 1965 Seeing Eye applied for and received a building permit for the construction of a structure (the second was not completed until 1966) to enclose an asphalt dog run then in operation. This construction also resulted in the enclosure of an interior roadway which had separated the two dog runs. No certificate of occupancy was ever issued for either structure though they have since been in continuous use.

Sometime in July 1968 Seeing Eye began the erection of a third structure over another dog run, this time without having obtained a building permit. Plaintiff complained to the building inspector, who thereupon issued a "stop work" order and directed the removal of the half-completed structure within 30 days. An application for a building permit was subsequently denied on the ground that construction of the building would amount to an extension of a nonconforming use in violation of the zoning ordinance.

Thereafter, upon the alleged failure of the building inspector to take any further action against the structures, plaintiff filed a complaint in municipal court.

In the meantime Seeing Eye appealed to the board of adjustment from the building inspector's refusal to grant a permit for the construction of the 1968 building and, alternatively,

sought a variance pursuant to N.J.S.A. 40:55-39(d). At the hearing before the board it waived the determination of whether the proposed structure amounted to an extension of a nonconforming use and supported its variance application by proof that the structure was solely intended to enclose a dog run which preexisted the amended ordinance, and that it would not increase the capacity of the kennels but would greatly reduce the noise emanating from the dogs kept in that portion of the premises. There was testimony that cleanliness would be facilitated by the enclosure of the dog run. A real estate expert testified that the erection of the building would have no effect on surrounding property values -- that it was hardly visible to any adjoining property owners. Plaintiff testified that the noise from the kennels had increased since 1959.

On November 25, 1968 the board of adjustment recommended to the township committee that a variance be granted. The township committee approved the variance by a resolution dated January 27, 1969. It attached a condition that upon the erection of the structure the applicant would not be permitted to attach an open dog run to it. Additional resolutions directed that no action be taken to compel the removal of the first two buildings, but that the building inspector file and the township attorney prosecute complaints against Seeing Eye.

The present action was instituted in March 1969. One month later the building inspector filed a complaint in the municipal court based upon Seeing Eye's failure to obtain certificates of occupancy for the first two buildings and its failure to obtain a building permit for the third building. The ...


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