On appeal from Superior Court, Law Division, Cape May County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D. (retired and temporarily assigned).
The principal issue on this appeal is whether the conduct of a day-care center for from 12 to 18 children in a residence constitutes a "home occupation" within the provisions of a zoning ordinance permitting such use in a zone restricted primarily to one and two-family dwellings. We conclude the use does not meet the language of the ordinance exception.
In the summer of 1977 defendants Herbert and Nancy Simmerman applied for a variance to operate a newly constructed 786-square-foot addition to their home then being
used as a day care center and to hire additional employees. Five members of the seven-member Dennis Township Board of Adjustment heard the application. Four of the five members present voted in favor of the variance, but the resolution did not say what type of variance was being granted, i.e. , whether paragraph (c) (bulk variance for hardship) or paragraph (d) (use variance) of N.J.S.A. 40:55D-70. Plaintiffs took an appeal to the township committee but that body disclaimed jurisdiction to entertain the appeal because the variance was regarded as a (c.) variance which was not appealable to the governing body. N.J.S.A. 40:55D-17(a).
Plaintiffs then filed this action in lieu of prerogative writs challenging the variance grant. They contended that the variance could not have been a use variance because two-thirds of the members did not approve it. N.J.S.A. 40:55D-70(d). Moreover, the board of adjustment could not have approved a (c.) (hardship) variance since there was nothing remarkable about the shape, size or topography of the property. Defendants contended that the variance was properly granted, but if it was not, the matter should be remanded for a hearing by the full board on a renewed application for a use variance. The trial judge held that the Simmermans did not need a variance because their day care center was a valid prior nonconforming use and that moving it from their home to the addition did not constitute an expansion of that use. Judgment was entered dismissing the complaint, and plaintiffs appeal.
The pertinent facts are largely undisputed. In June 1974 the Simmermans started to operate a day care center from their home. They served between 12 and 18 children, using almost their entire home. They had facilities for the children in their garage, back porch, kitchen, living room, bathroom and two of their three bedrooms. The day care children also used some of the playground equipment outside the house, although the Simmermans had installed much of that equipment for their two sons. The only part of their home
which was off limits to the day care children was the master bedroom, where their two sons apparently slept. The house (pre-addition) contained 1,671 square feet, and 1,561 square feet were available for the children receiving day care.
At all relevant times the Simmerman home, and the 186' X 303' lot upon which it is situated, was located in an R-1 zone. The permitted uses in R-1 districts included one and two-family dwellings, rooming and boarding houses, tourist and nursing homes and home occupations. At the time the Simmermans started their day care center the zoning ordinance defined a home occupation as:
An occupation or profession which is customarily carried on in a dwelling unit or in an accessory building by the member of the family residing on the premises which is clearly incidental and secondary to the use of the main building for residential purposes. Such occupation or profession shall be carried on wholly within the building.
However, in 1975 the township amended the ordinance to define a home occupation much more restrictively, specifically allowing only one person not a resident to be employed therein and ...