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Shields v. Board of Adjustment of Township of Mansfield

Decided: April 14, 1975.

ELIZABETH B. SHIELDS, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MANSFIELD; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MANSFIELD, COUNTY OF WARREN; PENWELL RACQUET CLUB, INC., A NEW JERSEY CORPORATION; EDWARD FABER AND RAYMOND MALEJKO, INDIVIDUALLY AND TRADING AS PENWELL RACQUET CLUB, DEFENDANTS-RESPONDENTS



Carton, Crane and Kole.

Per Curiam

The only issue which need concern us on this appeal is whether the board of adjustment and township committee properly held that the recreational use of the premises here in question constituted a special reason for the grant of a variance under N.J.S.A. 40:55-39(d). The trial judge held that it did and affirmed the municipal action. We hold to the contrary and hence reverse. We so hold, mindful of the somewhat limited scope of review by a trial court and appellate court of this kind of municipal determination. See, e.g., Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., dissenting opinion, 127 N.J. Super. 62, 63-64 (App. Div. 1974), rev'd on dissenting opinion, 64 N.J. 334 (1974).*fn1

Defendant Penwell Racquet Club, Inc.*fn2 was granted a use variance under N.J.S.A. 40:55-39(d) by the Mansfield Township Committee, after favorable recommendation of the board of adjustment. The land involved is a site of ten acres, which was part of a larger tract owned by one of the applicant's principals. Only a small portion of it is in the B-2 highway commercial zone. Most of the land is in the R-1 residential zone, in which indoor tennis courts are not permitted. Outdoor tennis courts, however, are a permitted use in the R-1 zone by special exception, on application to the board of adjustment. Although zoned residential, the area in which the site is situated is generally undeveloped, except for agricultural use.

The proposed use involves the construction on the ten-acre parcel of a two-story building to be used as an indoor tennis facility with six tennis courts, locker rooms, sauna baths, a babysitting room, a conference room for companies desiring to use the facility in connection with a recreation program,

a television area, rest rooms, a vending area consisting of vending machines, a pro shop where equipment may be purchased, and custodial and utility space. The building apparently would also house two or three squash and handball courts. There would be seven outdoor tennis courts. The entire facility would be privately owned and operated as a business. A membership fee would be charged and participants would pay for court time at varying rates. Five full-time employees would include a pro, a manager and maintenance personnel.

We find no reasonable basis in the proofs or in the subsidiary findings made by the municipal agencies to sustain the ultimate conclusion, which they appear to have made, that the recreational use sought is peculiarly suited to this land.

Assuming for present purposes that the findings which follow are supported by the evidence, that ultimate conclusion may not be predicated on any or all of them: (1) that the property is located in two zones, thereby requiring a variance for any use not permitted in both zones; (2) that outdoor tennis courts constitute a permitted special exception use in the R-1 zone, and the special exceptions provisions relating to outdoor recreational facilities contemplate buildings such as that here proposed; (3) that the location of the property is unique in that it has frontage on two roads, Route 57 and Penwell Road, and thus the property would not be "conducive" for development for residential purposes; (4) that the property is unique in that it is the only parcel on the south side of Route 57 zoned R-1 for a distance of about 2,400 feet located between two commercial zones; (5) that the proposed use would be compatible with the development of the area, since it is adjacent to and part of the commercial zone and across the street from the township school; (6) that lands to the east of the proposed site along the highway cannot be readily developed and are owned by the State; (7) that the nearest tennis facility is 19 to 20 miles away and the proposed use would be the only indoor recreational

facility in the township; (8) that apart from the residence of one of the principals there are "little or no existing residences in the area"; (9) that the site is centrally located to residents of the township and to the principal population centers of Hackettstown and Washington, and could be used conveniently by the township board of education in connection with the school; (10) that most of the remaining land in the township is rural and not readily accessible to all of the residents of the township and the surrounding areas; (11) that there may be a "flood potential" of residential homes constructed adjacent to the Musconetcong River at or near the proposed site, and (12) that there is no other property in the township zoned to permit both outdoor and indoor tennis courts or other similar recreational use.

None of these reasons indicates that the proposed recreational use is peculiarly fitted to this property. Moreover, the entire area surrounding the applicant's property is basically undeveloped, and the record fails to support the findings, among others, that the surrounding areas are not available for commercial development, including the recreational use sought; that they are not readily accessible to all residents; that the property here involved is subject to a flood potential or otherwise not suitable for residential development, and that an appropriate area for this use could not be found elsewhere in the township. See Kohl v. Fair Lawn Mayor and Council, 50 N.J. 268 (1967); Mahler v. Fair Lawn, 94 N.J. Super. 173 (App. Div. 1967), aff'd o.b. 55 N.J. 1 (1969).

The conclusion by the municipal agencies that the proposed recreational use is peculiarly fitted to this site is thus without reasonable foundation. Accordingly, the determination of the court below holding to the contrary is incorrect.

Hence, the variance may only be predicated on a finding sustained by the proofs that the proposed use inherently serves the public good or welfare. Kohl v. Fair Lawn Mayor and Council, supra; De Simone v. Greater Englewood ...


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