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Dresner v. Carrara

Decided: February 23, 1976.

EVEYLN DRESNER, A/K/A EVELYN MERLISS, SYLVIA KAPLAN AND APARTMENT & HOMES OF NEW JERSEY, INC., PLAINTIFFS-RESPONDENTS,
v.
MICHAEL R. CARRARA, THE PLANNING BOARD OF THE BOROUGH OF MONTVALE AND THE MAYOR AND COUNCIL OF THE BOROUGH OF MONTVALE, DEFENDANTS-APPELLANTS



For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Mountain, J.

Mountain

In this case we consider the validity of certain municipal land use regulations having as their purpose the creation of off-street parking facilities in traffic-congested areas. The validity of the regulations in question, which are to be found in the local zoning ordinance, was sustained in the trial court. The Appellate Division, however, in an unreported opinion, reversed and we granted certification. 67 N.J. 92 (1975). We now affirm.

The facts are essentially undisputed and may be briefly stated. Plaintiffs are, respectively, the owners and lessee of

property located in the Borough of Montvale on Kinderkamack Road close to its intersection with Grand Avenue. A one-story building on the premises has been used as a real estate and insurance office for many years, both prior to the adoption of the municipality's zoning ordinance in 1964 and almost constantly thereafter. The building became vacant in October, 1972. In March of the following year, however, a lease was entered into with a new tenant (one of the plaintiffs in this action) who intended to devote the property to the same purpose. The premises are located in the Business "B" District, where offices are a permitted use.

Before going into possession under the new lease, the lessee, joined by the property owners, applied to the municipal building inspector for a certificate of occupancy. The application was made upon the assumption that possession and use of the property by the new tenant without such certificate would be violative of a municipal regulation. They were referred by the inspector to the Planning Board. After reviewing the matter the Board informed the applicants that it would indeed be necessary for them to secure a certificate of occupancy before transferring possession to the new tenant. The plaintiffs were further advised that in order to secure the certificate it would be first necessary for them to submit a request to the County Planning Board to permit a curb-cut so that a driveway could be constructed to afford access from the highway onto their property. Furthermore, plaintiffs were told that they would be required to grade and surface the land to provide parking facilities for six automobiles. At first they apparently intended to acquiesce, but upon learning the cost of the proposed improvements they changed their minds and promptly instituted this litigation.

Initially, we must point out, as did the Appellate Division, that while the zoning ordinance includes regulations imposing off-street parking requirements, they are explicitly confined to premises upon which are located buildings which have been erected or altered subsequent to the

date of enactment of the ordinance. Article IX, § 128-27. The building upon this tract was constructed long before the ordinance was passed and has never been altered. Hence the regulation has no application to this land.

It should further be observed that for an entirely different reason the off-street parking requirements of this ordinance could not lawfully be applied here. As has been pointed out, the property had been used for a particular business purpose for many years prior to the passage of the ordinance, and during this period of time the premises had no off-street parking facility. Accordingly, upon passage of the ordinance, the continued utilization of the property in this fashion -- without off-street parking facilities -- became legally protected as a nonconforming use. N.J.S.A. 40:55-48. Beers v. Bd. of Adjust. of Wayne Tp., 75 N.J. Super. 305, 316 (App. Div. 1962).

Although the case can be decided in plaintiffs' favor for either of the foregoing reasons, we think, as did the Appellate Division, that something more should be said. The position of the defendant municipality seems to be that it may empower its Planning Board, by municipal legislation, to impose land use regulations upon the occasion of a change in occupancy of particular property, even though there be no accompanying change of use. This it may not do. The powers of a municipal planning board, insofar as they might possibly be thought applicable here, are to be found in the Municipal Planning Act (1953), N.J.S.A. 40:55-1.1 et seq., and in the Official Map and Building Permit Act (1953), N.J.S.A. 40:55 -- 1.30, et seq.*fn1 These statutes in no way support defendants' contention. Planning boards

are at liberty to impose land use controls upon certain specified occasions. The occasion which most commonly arises is when application is made for subdivision approval. In such a circumstance a planning board may require any of the improvements listed in N.J.S.A. 40:55-1.21 "before final approval" is given. Although the present statute authorizes "such other subdivision improvements as the municipal governing body may find necessary in the public interest," off-street parking is not specifically enumerated. Ordinances providing for off-street parking facilities have been generally sustained, however, even when an enabling act does not specifically authorize such facilities. 2 Anderson, American Law of Zoning, § 8.40, p. 24 (1968); Annotation, "Validity and Construction of Zoning Regulations Requiring Garage or Parking Space," 74 A.L.R. 2d 418 (1959). See Allendale Congregation Jehovah's Witnesses v. Grosman, 30 N.J. 273 (1959), appeal ...


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