On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Gruccio and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.
[221 NJSuper Page 149] The issue here is whether the temporal extension of a seasonal (Memorial Day through Labor Day) restaurant and hotel use in a residential zone to a basically year-round operation
is an illegal expansion of a prior, 30-year-old nonconforming use. The Spring Lake Board of Zoning Adjustment ruled against the application for a year-round operation by plaintiff Cos-Lin, Inc. The Law Division judge reversed the Board. We conclude that the proposed extension of this summer seasonal restaurant and hotel use to a substantially year-round operation in the Borough's most restricted residential zone violates the strong public policy expressed in our case law to limit and discourage the extension of nonconforming uses. We reverse the Law Division.
The Borough of Spring Lake is an upper-middle-class to upper-class suburban residential community, extending about 2.1 miles, or 27 blocks north to south, and 1.5 miles, or six blocks east to west. Spring Lake is bordered by the Atlantic Ocean on the east, the New York and Long Branch Railroad on the west, the Boroughs of Belmar and South Belmar on the north, and the Borough of Sea Girt on the south. The permanent population is about 4,200 and the summer population is about 7,500. The land distribution is: 46% single-family detached residential, 27.6% public, quasi-public (parks, tennis courts) and lakes, 20% street network, 2% commercial, 3% hotels and guest houses, and 1.4% vacant land. Spring Lake Hotel Ass'n v. Spring Lake, 199 N.J. Super. 201, 204 (App.Div.), certif. den. 101 N.J. 267 (1985). The 35 existing hotels and guest houses are preexisting nonconforming uses, 17 of which have been open only seasonally from Memorial Day to Labor Day. Ibid.
"The Breakers", an old Victorian-style hotel, fronts on the Atlantic Ocean; Ocean Avenue and a boardwalk separate the hotel from the dry sandy beach. The boardwalk is undeveloped, commercially or otherwise. The area around "The Breakers" is zoned R-1, the highest residential zone in the Borough. The hotel's neighborhood is completely residential except for an
adjacent 25-room guest house, "The Kenilworth," which also fronts on Ocean Avenue. The houses in the surrounding area ranged in value from $150,000 to $600,000 in 1983-1984. "The Breakers" has 70 rooms and is a four-story structure, about 100 years old.
The Borough's ocean front was originally zoned for hotels in 1929. The area was rezoned R-1 in 1957 when the townspeople recognized the trend from a resort town to essentially a single-family year-round residential community with the advent of the Garden State Parkway and other local highway improvements. The zoning has remained residential during the past 30 years. The town was originally a rural fishing and farming village which developed into a vacation resort during the late 1800's with the onset of railroad accessibility to the New York metropolitan area. The original large beachfront hotels, The Monmouth and the Essex and Sussex, no longer exist. The Monmouth has been demolished and replaced by residences; the Essex and Sussex apparently has been converted to summer seasonal condominiums.
"The Breakers" operated as a hotel with a restaurant for guests and the general public until its sale to the plaintiff Cos-Lin in 1979. Until then the hotel and restaurant had operated only from Memorial Day to Labor Day. After Cos-Lin bought "The Breakers," the restaurant eventually remained open into the fall months, apparently through the end of November, without official approval. In 1983 Cos-Lin's principal, Cosmo Scardino, applied to upgrade the heating capacity for year-round use. This application precipitated the applications to the Board for variance and interpretive relief and then this suit.
The dining room seats about 150 and has about 30 tables. During the off-season months when Scardino hopes to be open, he anticipates serving a minimum of 400 people a week, about 200 of them on Saturday night. He plans to close during January, and apparently part of February, for vacations and
renovations. In his testimony of October 24, 1985, Scardino said he planned a "ten and one-half month operation a year." He actually only had seven hotel rooms heated and available for occupancy in the off-season during 1983-1985 when the Board's hearings were held. He anticipated only about a 10% occupancy rate in the hotel through the "off-season" if his application was granted. During the summer season, occupancy of the hotel is essentially 100% and the restaurant is "busy." When Scardino testified in mid-November 1983 he said the "hotel was now closed for the winter" but the restaurant was open. There is no off-street parking available to patrons on "The Breakers" property. There is no liquor license; customers usually bring their own alcoholic beverages.
This is the procedural and factual background of this litigation. In 1983 Cos-Lin made an application to David Miller, Spring Lake's construction official, for a building permit to install heating equipment in the dining rooms and hotel rooms in "The Breakers" to facilitate a year-round operation in contrast to the previous Memorial Day to Labor Day operation. After denial of this building permit, Cos-Lin applied to the Board for an interpretation that in essence would have permitted the proposed temporal extension as a de minimis expansion of the pre-existing nonconforming hotel and restaurant use ...