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Kessler v. Bowker

Decided: December 20, 1979.

THEODORE P. KESSLER, A/K/A DICK KESSLER, PLAINTIFF-APPELLANT,
v.
KEITH BOWKER AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WESTAMPTON, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

Matthews, Ard and Polow.

Per Curiam

This is a zoning case. The defendant Keith Bowker made application for permission to expand his nonconforming retail appliance shop. Variances were required as the proposed expansion was in violation of the use, side yard, bulk and parking provisions of the township zoning ordinance. After failing to secure the requisite affirmative votes from the board of adjustment, Bowker appealed to the township committee. Defendant township committee granted the application, and plaintiff instituted an action in lieu of prerogative writs to set aside the variances. Defendants answered the complaint by asserting that the action of the township committee was proper and that plaintiff was not entitled to relief.

The trial judge, after hearing arguments, found in a comprehensive, oral opinion that the township committee did not act arbitrarily in granting the variances. Judgment was entered in favor of the defendants. Plaintiff appeals.

The property in question is located at Second and Bridge Streets in the historic village of Rancocas, Township of Westampton. Since 1946 it has been used as an appliance and television sales and service store and, for as long as anyone can remember, the building has been used for commercial purposes. It consists of a two-story brick building which was apparently erected some time around the Civil War and located on a lot 52' X 185'. It is uncontradicted that the property is a nonconforming use located in an R-2 district which only permits one-family

detached dwellings and accessory buildings. Early in 1977 defendant Keith Bowker applied to the board of adjustment for "c" and "d" variances permitting him to construct an addition to the existing building. The application was made pursuant to N.J.S.A. 40:55D-70(c) and (d). The proposal requested permission to enclose an existing salvage and storage yard and provide additional space for storage. Bowker testified that he needed the additional space to compete effectively with larger stores. His primary contention was that allowing him to construct the addition would have the salutary effect of enclosing his unsightly and potentially hazardous storage area. This storage area extends approximately 35' from the rear of the building. It was used to store old refrigerators and air conditioners, and other such appliances taken in trade to be repaired or sold for scrap. The area is enclosed by a six-foot wooden fence. Bowker contended that by enclosing the area with the proposed brick building he would contribute to the beauty of the area and remove a safety hazard. There was testimony that the storage area was an attractive nuisance which posed a threat to the neighborhood children.

After a plenary hearing the members of the board of adjustment voted 4-3 to approve the application, but because N.J.S.A. 40:55D-70(d) required approval of two-thirds of the membership of the board for a use variance, the proposal was defeated.*fn1 The record reflects only the naked vote of the board, which made no basic findings of fact or ultimate conclusions. After the vote the attorney for the board explained to Bowker that under a new ordinance adopted by the township he was permitted to appeal the decision of the zoning board to the governing body. Plaintiff did so.

Thereafter, pursuant to N.J.S.A. 40:55D-17(a) and the newly enacted ordinance, the governing body considered the appeal on the record established before the board of adjustment. After hearing arguments, the township committee by a vote of 4-0 reversed the board of adjustment and approved the application.

By resolution it made the following findings of fact: first, that the existing building and use violated the parking area, lot area and use provisions of the ordinance, but the violations preexisted the enactment of the zoning ordinance; second, that the 34' immediately to the rear of the existing building had been used for storage and shop purposes; third, that the storage area was unsightly and constituted a safety hazard to area residents, and finally, that the proposed addition was to be constructed in conformity with the distinctive character of the neighborhood and would not result in an increase in business or traffic. From these findings the governing body concluded that the applicant should be permitted to construct a 34' addition, not the 50' requested, enclosing the outside storage area. With reference to the 34' addition, the governing body concluded that enforcement of the zoning regulations "would result in peculiar and exceptional practical difficulties to or exceptional undue hardship upon" Bowker and that special reasons existed for granting a use variance in that the proposed addition "promotes aesthetics and the health, safety and welfare of the residents." The governing body also concluded that the "requested 'c' and 'd' variances could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance."

The resolution conditioned its approval of the requested variances by limiting the extension to 34'; refusing to allow parking on the property immediately adjacent to Second Street; requiring Bowker to provide adequate parking on the rear of the property (although he need not have the 30 spaces required by the ordinance), and that a brick veneer be placed on the addition to conform with the character of the community.

The trial judge affirmed the decision of the governing body, concluding that he was limited to determining whether the decision of the governing body was arbitrary, capricious or unreasonable. In applying that standard he held that the governing body could have concluded, based on the record made before the board of adjustment, that special reasons existed for the grant of a ...


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