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Zilinsky v. Zoning Board of Adjustment of Borough of Verona

Decided: March 12, 1987.

WALTER ZILINSKY, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF VERONA, DEFENDANT, AND THE BOROUGH OF VERONA, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

[105 NJ Page 365] This case concerns the validity of a structural design feature of a local zoning ordinance that required every one-family dwelling to have a minimum of two off-street parking spaces, one of which had to be in a garage. The lower courts held that the garage requirement in a residential zone was an arbitrary and unreasonable exercise of the zoning power and directed the local zoning officials to issue a certificate of occupancy for the conversion of the garage to a recreation room that respondent had undertaken without first obtaining a variance and building permit. We disagree and hold that provision for an on-site garage space as a structural requirement in this zone of the community is a valid exercise of the zoning power.

I.

The respondent, Walter Zilinsky, is the owner of a single-family home located in the Borough of Verona. The home is in an R-3 (single-family) zoning district. The applicable zoning provisions require that every one-family dwelling must have a minimum of two off-street parking spaces, one of which must be in a garage.

In 1983, respondent, Zilinsky, converted the attached garage of his residence into a recreation room, thereby preventing the storage of a car. After conversion of the garage, respondent applied to the Zoning Board of Adjustment for a variance after the building inspector granted a certificate of occupancy conditioned on obtaining a variance. The Zoning Board denied the variance on the grounds that respondent failed to prove sufficient hardship.

Thereafter respondent filed suit against the Zoning Board in the Law Division. After the municipality was joined as a defendant, the court found that "the ordinance is unconstitutional because it imposes excessive restrictions on [respondent's] use of his property, restrictions that bear no substantial relationship to the goals that the Borough seeks to achieve." Moreover, the trial court noted that the ordinance was especially defective in its failure to "mandate that an automobile ever be parked in the garage." Therefore, it ordered the words "1 of which shall be in a garage" stricken from the ordinance. The merits of the variance denial, however, were not addressed in the opinion.

Defendants Borough of Verona and the Zoning Board then appealed to the Appellate Division. In an unpublished opinion, the Appellate Division affirmed the trial court judgment, adding that a zoning ordinance "must articulate tangible, specific objectives promoted by the ordinance" in order to be valid.

This Court granted Verona's petition for certification, 104 N.J. 466 (1986).

II.

We must begin by recalling the limits on judicial power in this area:

The role of the judiciary in reviewing zoning ordinances adopted pursuant to the statutory grant of power is narrow. The court cannot pass upon the wisdom or unwisdom of an ordinance, but may act only if the presumption in favor of the validity of the ordinance is overcome by an affirmative showing that it is unreasonable or arbitrary. Kozesnik v. Township of Montgomery, 24 N.J. 154, 167 (1957); see Cunningham, "Control of Land Use in New Jersey," 14 Rutgers L.Rev. 37, 48 (1959). By these standards which control judicial review, the plaintiff to prevail must show beyond debate that the township in adopting the challenged ordinance transgressed the standards of R.S. 40:55-32 [now N.J.S.A. 40:55D-62, -65, and -67]. In other words, if the amendment presented a debatable issue we cannot ...


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