Decided: December 17, 1973.
JACK KRUL, T/A UNITED ROOFING & SHEET METAL CO., PLAINTIFF-RESPONDENT,
BOARD OF ADJUSTMENT OF THE CITY OF BAYONNE, DEFENDANT-APPELLANT
Lynch, Mehler and Michels.
[126 NJSuper Page 151]
An industrial building owned by plaintiff and located in a multi-family residential zone was totally destroyed by fire. The Board of Adjustment of the City of Bayonne denied plaintiff's application for a building permit to construct a building on the foundation of the burned-out structure. On review of the denial, Judge Larner reversed the action of the Board and entered judgment directing issuance of the permit. The Board appeals. It urges as grounds for reversal the contentions made by it in the court below and for the further reason, not raised below, that the permit would violate Bayonne's zoning ordinance. That argument is without merit.
The old building was a three-story structure with two apartments on the third floor, which were rented out as dwelling units. Plaintiff proposes to build a one-story building
[126 NJSuper Page 152]
with no apartments. Bayonne's 1948 zoning ordinance states that "no nonconforming use shall be extended so as to diminish the extent of a conforming use." The 1969 revision provides that "no nonconforming use shall be extended at the expense of a conforming use." These provisions prohibit the extension of a nonconforming use through the modification or elimination of a conforming use, which is not the case here. The new structure is to be only one story high, while the prior structure was three stories high. Thus, although the prior conforming use of a portion of the old building by means of apartments was diminished through their elimination, it was not by reason of an extension of the nonconforming use.
We affirm the judgment below substantially for the reasons expressed by Judge Larner in his opinion, which is reported in 122 N.J. Super. 18 (1972).