Shields v. Board of Adjustment

337 A.2d 54, 133 N.J. Super. 418, 1975 N.J. Super. LEXIS 832
CourtNew Jersey Superior Court Appellate Division
DecidedApril 14, 1975
StatusPublished
Cited by1 cases

This text of 337 A.2d 54 (Shields v. Board of Adjustment) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shields v. Board of Adjustment, 337 A.2d 54, 133 N.J. Super. 418, 1975 N.J. Super. LEXIS 832 (N.J. Ct. App. 1975).

Opinion

Per Curiam.

The only issue which need concern us on this appeal is whether the hoard of adjustment and township committee properly held that the recreational use of the premises here in question constituted a special reason for the grant of a variance under N. J. S. A. 40:55-39(d). The trial judge held that it did and affirmed the municipal action. We hold to the contrary and hence reverse. We so hold, mindful of the somewhat limited scope of review by a trial court and appellate court of this kind of municipal determination. See, e. g., Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., dissenting opinion, 127 N. J. Super. 62, 63-64 (App. Div. 1974), rev'd on dissenting opinion, 64 N. J. 334 (1974)1

Defendant Penwell Racquet Club, Inc.2 was granted a use variance under N. J. S. A. 40:55-39(d) by the Mansfield Township Committee, after favorable recommendation of the board of adjustment. The land involved is a site of ten acres, which was part of a larger tract owned by one of the applicant’s principals. Only a small portion of it is in the B-2 highway commercial zone. Most of the land is in the E-l residential zone, in which indoor tennis courts are not permitted. Outdoor tennis courts, however, are a permitted use in the E-l zone by special exception, on application to the board of adjustment. Although zoned residential, the area in whidhi the site is situated is generally undeveloped, except for agricultural use.

The proposed use involves the construction on the ten-acre parcel of a two-story building to be used as an indoor tennis facility with six tennis courts, locker rooms, sauna baths, a babysitting room, a conference room for companies desiring to use the facility in connection with a recreation program, [421]*421a television area, rest rooms, a vending area consisting of vending machines, a pro shop where equipment may be purchased, and custodial and utility space. The building apparently would also house two or three squash and 'handball courts. There would be seven outdoor tennis courts. The entire facility would be privately owned and operated as a business. A membership fee would be charged and participants would pay for court time at varying rates. Eive full-time employees would include a pro, a manager and maintenance personnel.

We find no reasonable basis in the proofs or in the subsidiary findings made by the municipal agencies to sustain the ultimate conclusion, which they appear to have made, that the recreational use sought is peculiarly suited to this land.

Assuming for present purposes that the findings which follow are supported by the evidence, that ultimate conclusion may not be predicated on any or all of them: (1) that the property is located in two zones, thereby requiring a variance for any use not permitted in both zones; (2) that outdoor tennis courts constitute a permitted special exception use in the R-l zone, and the special exceptions provisions relating to outdoor recreational facilities contemplate buildings such as that here proposed; (3) that the location of the property is unique in that it has frontage on two roads, Route 57 and Penwell Road, and thus the property would not be “conducive” for development for residential purposes; (4) that the property is unique in that it is the only parcel on the south side of Route 57 zoned R-l for a distance of about 2,400 feet located between two commercial zones; (5) that the proposed use would be compatible with the development of the area, since it is adjacent to and part of the commercial zone and across the street from the township school; (6) that lands to the east of the proposed site along the highway cannot be readily developed and are owned by the State; (7) that the nearest tennis facility is 19 to 20 miles away and the proposed use would be the only indoor recrea[422]*422tional facility in the township; (8) that apart from the residence of one of the principals there are “little or no existing residences in the area”; (9) that the site is centrally located to residents of the township and to the principal population centers of Haekettstown and Washington, and could be used conveniently by the township board of education in connection with the school; (10) that most of the remaining land in the township is rural and not readily accessible to all of the residents of the township and the surrounding areas; (11) that there may be a “flood potential” of residential homes constructed adjacent to the Musconetcong River at or near the proposed site, and (12) that there is no other property in the township zoned to permit both, outdoor and indoor tennis courts or other similar recreational use.

None of these reasons indicates that the proposed recreational use is peculiarly fitted to this property. Moreover, the entire area surrounding the applicant’s property is basically undeveloped, and the record fails to support the findings, among others, that the surrounding areas are not available for commercial development, including the recreational use sought; that they are not readily accessible to all residents; that the property here involved is subject to a flood potential or otherwise not suitable for residential development, and that an appropriate area for this use could not be found elsewhere in the township. See Kohl v. Fair Lawn Mayor and Council, 50 N. J. 268 (1967); Mahler v. Fair Lawn, 94 N. J. Super. 173 (App. Div. 1967), aff’d o.b. 55 N. J. 1 (1969).

The conclusion by the municipal agencies that the proposed recreational use is peculiarly fitted to this site is thus without reasonable foundation. Accordingly, the determination of the court below holding to the contrary is incorrect.

Hence, the variance may only be predicated on a finding sustained by the proofs that the proposed use inherently serves the public good or welfare. Kohl v. Fair Lawn Mayor and Council, supra; De Simone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428 (1970); Bonsall v. Mendham [423]*423Tp., 116 N. J. Super. 337 (App. Div. 1971), certif. den. 59 N. J. 529 (1971).

The board of adjustment and township committee in effect so found. They referred to the need in the area for recreational facilities, particularly of an indoor nature, and the benefit ensuing from a recreational facility of this type to the “public health and welfare of the citizens and taxpayers” of the township. The trial court agreed. We conclude that in so doing, it erred.

Eecreation and sports have been recognized judicially as valid public purposes appropriate for the government to undertake under the state constitutional provisions relating to the raising and use of public moneys only for public purposes. In this context it has been considered as “intimately related to the general welfare of a well-balanced state” and as “absolutely essential to the public welfare.” N. J. Sports and Exposition Auth. v. McCrane, 119 N. J. Super. 457, 488-493 (Law Div. 1971), aff’d, with modification, on other gds., 61 N. J. 1 (1972).

But this concept of the public good may not be imported into the zoning area for use variance purposes. To recognize a commercially operated recreational facility of the kind here contemplated as a use inherently serving the public good or welfare so as to constitute a special reason for a variance under N. J. S. A. 40:55-39(d) would serve effectively to nullify the purpose of that provision and the decisions interpreting it.

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Related

Shields v. Bd. of Adjustment Tp. of Mansfield
337 A.2d 54 (New Jersey Superior Court App Division, 1975)

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Bluebook (online)
337 A.2d 54, 133 N.J. Super. 418, 1975 N.J. Super. LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-board-of-adjustment-njsuperctappdiv-1975.