holding that nonconforming uses may not be enlarged as of right "except where the enlargement is so negligible or insubstantial that it does not fairly warrant judicial or administrative notice or interference"
How later courts described this case
- holding that nonconforming uses may not be enlarged as of right "except where the enlargement is so negligible or insubstantial that it does not fairly warrant judicial or administrative notice or interference"
- holding addition of 260-square foot area to create an office, elevator, stairway, and smoking room was an enlargement of a nonconforming use that could not be viewed as insubstantial
- remanding claim for zoning board to make findings and enter a formal resolution as there was evidence that addition to funeral home within residential neighborhood would actually have an effect of minimizing the impact of the nonconforming use
- courts have uniformly held that, because nonconforming uses "were generally discordant to their surroundings it was the fervent hope that they would in time wither and die and be replaced by conforming uses"
Written by the judges who cited it.
The opinion
Burling, J.
(concurring). I agree with the majority opinion that the state of the record is such that a remand to the board of adjustment for further basic and then ultimate factual findings in accordance with the standards set forth in N. J. S. A. 40:55-39 is essential to a proper disposition of the cause on appeal. Tomko v. Vissers, 21 N. J. 226 (1956). Until such time as that is accomplished I would refrain from comment on the merits of this particular case.
My disagreement is with the enunciation of the legal principles governing requests for variances seeking to enlarge nonconforming uses existing at the time of the enactment of the zoning ordinance. The majority, after reaffirming the principles of the two Ward v. Scott cases, 11 N. J. 117 (1952), 16 N. J. 16 (1954), then observe:
“Since a variance may, upon a proper showing of special reasons within N. J. S. A. 40:55-39 (d), be granted to create a new nonconforming use in a residential zone it may clearly be granted to enlarge a pre-existing nonconforming use; it is entirely evident that a limited extension of a pre-existing professional office, gasoline station, funeral home, shopping center or other business activity in *273 a residential zone, will ordinarily be less likely to involve substantial impairment of the zoning plan than will the creation of a wholly new use of such nature.”
But to make the prime focus of attention the limited extension” of the pre-existent nonconforming use in order to determine whether a variance is permissible is in my view not the proper approach. Such a thesis fails to take into account the fundamental distinction between the extension or enlargement of a pre-existing nonconforming use and the creation of a new nonconforming use. A pre-existing nonconforming use exists as a matter of legislative right, B. 8. 40:55-48, irrespective of the manner in which the use will mesh with the existing or projected zoning plan or the essentials of sound zoning as outlined in the statute, B. S. 40:55-32, and irrespective of whether there exists a “hardship” or “special reasons” justifying the use under N. J. S. A. 40:55-39. A variance to create a nonconforming use, on the other hand, rests in the sound and reasoned discretion of the board of adjustment and governing body, exercised in accordance with the standards and procedure set forth in N. J. 8. A. 40:55-39, 40:55-32.
While it is true that a request for a variance is the proper procedure to achieve a substantial extension of a nonconforming use, Monmouth Lumber Co. v. Ocean Township, 9 N. J. 64 (1952), application for such' variance should be viewed with disfavor, and should only be granted where the property owner can clearly convince the appropriate municipal officials that a variance to create the nonconforming use in the first instance would have been granted.
The principles applicable to the situation at hand were enunciated by this court in Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N. J. 189, at page 196 as follows:
“While the courts have given full accord to this statutory mandate, United Advertising Corp. v. Borough of Raritan, 11 N. J. 144, 152 (1952), Frank J. Durkin Lumber Co. v. Fitzsimmons, supra [106 N. J. L. 183 (E. & A. 1929)] ; Kramer v. Town of Montclair, 33 N. J. Super. 16 (App. Div. 1952) ; the spirit of the law is to restrict non-conforming uses. Monmouth Lumber Co. v. Ocean *274 Township, 9 N. J. 64, 77 (1952) ; Speakman v. Mayor and Council of Borough of North Plainfield, 8 N. J. 250, 257 (1951) ; Lumund v. Board of Adjustment, 4 N. J. 577, 585 (1950). Their position in the zoning scheme is not encouraged because of the tendency to subvert rather than support sound planning. Such uses possess a contagious character which works to infect the neighborhood of their location, Beirn v. Morris, 14 N. J. 529, 536 (1954) ; Note, 9 U. of Chicago L. Rev. 477, 479, 480 (1942), and their presence is adverse to the zoning objective of reasonable conformity, Speakman v. Mayor and Council of Borough of North Plainfield, supra, 8 N. J. at page 257. One eminent authority has gone so far as to suggest that the entire problem of the non-conforming use might be solved by establishing a duty to abstain from unfair non-conformity. See Freund, ‘Some Inadequately Discussed Problems of the Law of Zoning and City Planning,’ 24 Ill. L. Rev. 135, 147 (1929). Without discussing the merits of this proposition it is sufficient to remember that the benefits which accrue to the public through the zoning method are accompanied by burdens to all. Schmidt v. Board of Adjustment, 9 N. J. 405, 415 (1952).”
To the same effect is Monmouth Lumber Co. v. Ocean Township, supra.
These cases are in harmony with the firmly established policy in this State that pre-existing nonconforming uses must be contained, consonant with the spirit of a unified zoning plan. Burmore Co. v. Smith, 124 N. J. L. 541 (E. & A. 1940); Gross v. Allan, 37 N. J. Super. 262 (App. Div. 1955); Hay v. Board of Adjustment of Borough of Fort Lee, 37 N. J. Super. 461 (App. Div. 1955); Martin v. Cestone, 33 N. J. Super. 267 (App. Div. 1954) ; Rockleigh Borough, Bergen County v. Astral Industries, Inc., 29 N. J. Super. 154 (App. Div. 1953); Home Fuel Oil Co. of Ridgewood v. Board of Adjustment of Borough of Glen Rode, 5 N. J. Super. 63 (App. Div. 1949); National Lumber Products Co. v. Ponzio, 133 N. J. L. 95 (Sup. Ct. 1945); and see Editorial Note, 9 Rutgers L. Rev. 697 , 706 (1955); Note, 102 U. of Pa. L. Rev. 91, 98 (1953).
A de minimis change would not be detrimental to the philosophy of containment. See Martin v. Cestone, supra (33 N. J. Super, at pages 270—271). But before a variance to substantially extend or enlarge a pre-existing nonconforming use may be granted under N. J. S. A. 40:55-39 *275 the appropriate municipal officials should first determine whether a variance to create the use in the first instance would have been granted. In the instant case, being under N. J. S. A. 40:55-39(d), unless the board oí adjustment and the governing body of Belmar could fairly say that they would have granted a request for a variance to create a funeral home in the residential zone, then a substantial enlargement of the use may not be permitted.
To hold otherwise would render nugatory the policy to contain pre-existing nonconforming uses and the hope that eventually they will be relocated in more suitable environs. A substantial extension or enlargement of that use may perpetuate its continued existence, rather than “wither” it and incidentally operates unfairly against those who are not permitted to locate in the zone in the first instance.
Accordingly I vote to modify and remand.
Bukling, J., concurring in result.
For modification and remandment—Chief Justice Weintraub, and Justices Burling, Jacobs, Prancis and Proctor-—5.
For affirmance—Justice Heher—1.