On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None.
The narrow issue in this case concerns the validity of a municipal ordinance that authorizes the restoration or replacement of any structures within the municipality that accommodate nonconforming uses, provided that the size of the replacement structure, measured by its "cubicle content," does not exceed the size of the existing structure. The Law Division invalidated the ordinance. In an unreported opinion, the Appellate Division affirmed substantially for the reasons stated by the trial court. We granted certification, 108 N.J. 218 (1987), and now affirm.
Defendant Philtone, Inc. (Philtone) is the owner of the Hotel Avalon, a fifty-room hotel located in the Borough of Avalon (Borough). When Philtone acquired the hotel in 1966, the hotel was a permitted use under the local zoning ordinance. The area was later rezoned for one-family residential dwellings and the hotel became a nonconforming use.
In 1980 the Borough adopted an ordinance to permit restoration and replacement of nonconforming uses under prescribed conditions. (Borough of Avalon, N.J., Ordinance No. 78-80 (July 25, 1980) (codified as amended at Borough of Avalon, N.J., Rev.Ord. § 27-7.5 (Supp.1981)).*fn1 According to its preamble, the
ordinance had as its purpose the encouragement of renovation of structures that accommodate nonconforming uses. The preamble noted that in the past only the interiors of such buildings had been renovated, resulting in unsafe and aesthetically unappealing structures.
The ordinance thus permits reconstruction of nonconforming uses provided the new structure has no greater "cubicle content"*fn2 than the existing structure. Avalon, N.J., rev. ord. § 27-7.5a(1). It permits the new structure to have a different configuration or design from that of the existing structure, and allows an increase in the land coverage of the existing structure over that permitted by the applicable zoning provisions. Id.,
§ 27-7.5a(2), (3)(d). With regard to height and setbacks, the new structure may either perpetuate the height and setbacks of the existing structure or comply with the requirements of the zoning ordinance. Id., § 27-7.5a(3)(c), (e).
The ordinance also provides that at least ten percent of the pre-existing foundation or exterior walls must be used in the construction of the new structure, but the use of this material as fill fulfills this requirement. Id., § 27-7.5a(3)(a).
Pursuant to the 1980 ordinance, Philtone received approval in 1985 from Avalon's planning board to demolish and reconstruct the Hotel Avalon. As it now exists, the hotel can accommodate approximately one hundred guests. It also contains a nightclub with a maximum capacity of 967 occupants. The proposed structure would accommodate approximately 196 guests in forty-six two-bedroom units and four ...