On appeal from the Superior Court, Law Division, Bergen County.
Furman, Dreier and Stern. The opinion of the court was delivered by Furman, P.J.A.D. Dreier, J.A.D., concurring.
Defendant Sommerhalter was granted a use variance, N.J.S.A. 40:55D-70(d), for washing, waxing, preparation for sale and storage of new cars in an existing building, upon condition that he not perform auto body or heavy mechanical work, painting or spraying at the site. The proposed use would be ancillary to defendant's automobile dealership in a nearby municipality. The Law Division affirmed the use variance in this action instituted by objectors, who are nearby residents and property owners. We also affirm.
The property is a lot of almost 20,000 square feet in a one-and two-family residential zone at the corner of two intersecting streets. There are some other commercial uses in the vicinity. Other permitted uses in the zone include churches, schools, parks, playgrounds, municipal facilities and professional offices combined with dwellings.
A bus garage was operated on the premises for several years as a preexisting nonconforming use. The masonry building used for the bus garage is 15 feet in height with over 6,000 square feet of floor space. The bus garage use was discontinued about nine months before defendant acquired the property and applied for the use variance.
Defendant has not advanced the argument that his proposed use would not substantially deviate from the preexisting nonconforming use and, thus, he is entitled to continue it. Nor has he contended that he is entitled to a variance for a use modifying only slightly and unintrusively the discontinued bus garage use. See North Bergen Tp. v. Thomas S. Lee Enterprises Inc., 75 N.J. Super. 17, 21-22 (App.Div.1962); Scavone v. Totowa, 49 N.J. Super. 423, 427-428 (App.Div.1958). The judge below did not pass on the issue of whether the preexisting nonconforming use was abandoned or merely discontinued; he noted that the Board of Adjustment also had not.
The Board of Adjustment determined that the use variance could be granted without substantial detriment to the public welfare or substantial impairment of the zoning plan. Its determination that the so-called negative criteria were met was reasonably reached on the evidence in the record, including the evidence of some commercial development nearby and defendant's representations that he would deliver cars to the site one at a time and not by truckload, that he would store no more than 30 there at one time, that he would not run them on idle creating fumes, that he would renovate the masonry building, paint it, secure it, put a fence around it and landscape the property outside.
The special reason for a use variance found by the Board of Adjustment was that the property "cannot be reasonably put to a residential use without destruction of the building in question." The judge below amplified what in our view was implicit in the Board of Adjustment findings, pointing out, on the undisputed record, that the building, while vacant, had become
dilapidated, an "eyesore" and a "danger;" that the property with the building standing had no market for residential housing or other permitted use because of the prohibitive cost of purchasing the building and tearing it down; and that, without a conversion to a use such as defendant proposed, the property "would remain vacant ad infinitum."
As we have said, whether there is a right to a preexisting nonconforming use for a bus garage on the premises is not in issue. The former bus garage building is there, deteriorating in appearance and increasingly a hazard to children and others. Defendant's proposed use is one compatible with the former bus garage use and no more, if not less, intrusive.
The judicial precedents supporting the result below are those upholding use variances for safe and attractive structures to replace unsafe and dilapidated structures, which otherwise would remain eyesores and dangers diminishing nearby property values, Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268 (1965) (fireproof hotel to replace dangerous structure); Kessler v. Bowker, 174 N.J. Super. 478 (App.Div.1979) certif. den. 85 N.J. 99 (1980) (expansion of nonconforming retail appliance shop making the property safer for children by removing an ...