
    STATE OF NEW JERSEY (GEORGE H. NORTHAM), PLAINTIFF-RESPONDENT, v. ANN CASPER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued August 23, 1949
    Decided October 4, 1949.
    
      Before Judges Bigelow, McLean and Rogers.
    
      Mr. Ward Kremer argued the cause for defendant-appellant.
    
      Messrs. Parsons, Labrecque, Canzona ids Combs, for plaintiff-respondent, Mr. Edmund J. Canzona argued the cause.
   The opinion of the court was delivered by

McLean, J. S. C.

This appeal brings up for review the conviction of the defendant-appellant for violation of the zoning ordinance of City of Long Branch, in that she permitted the use of a single detached house located at 936 Ocean Avenue for more than one family and the renting of various portions of the said house to various persons, contrary to and in violation of the 4th section of said ordinance passed March 3, 1931, and the several amendments thereto and supplements thereof.

The defendant sets up as the first ground for reversal that three years prior to the zoning ordinance and continuously thereafter the then owners used the property for what is customarily known as a rooming house; that such use was a nonconforming use under the statute (B. 8. 1937, 40:55 — 48) which she as the successor in title could continue.

These are the facts. Prior to 1948 the premises were occupied as a private one family residence; they were then acquired by J ames C. Gaffney and his partner Bernard Lepinsky with the idea of erecting an apartment house. Confronted with adverse economic conditions of the depression period they abandoned the idea of the apartment house and “to get some money out of it to pay the taxes” the house was furnished and according to Lepinsky they “started in renting rooms.” There were “around twenty-six rooms, * * * but only about twenty-two rented rooms because the other rooms was like living room and sitting room and kitchen, all those things.” Gaffney acquired Lepinsky’s interest and continued the business under his personal supervision until he died in December, 1943. Salesmen had rooms there; a sign appeared on the premises inviting roomers; for a time meals were served. Gaffney’s daughter testified that she was a “paying guest” and that there were others; that when Gaffney died the executors of his estate “asked the people to vacate and then they closed it up” and it remained closed until sold in December, 1947. Defendant-appellant, when asked what use she is making of the premises, testified, “Well, there is three apartments there that I have rented out.”

These facts fail to establish the non-conforming use here claimed. It is now no longer open to question that the spirit underlying the Zoning Act (R. S. 40:55-30, et seq.), is to restrict rather than to increase any non-conforming use under section 48. The non-conforming use must be a continuance of the same use made of the property at the time of the passage of the ordinance; it must have been lawful when instituted and actively and constantly maintained. Lane v. Bigelow, 135 N. J. L. 195; Durkin v. Fitzsimmons, 106 N. J. L. 183.

In this case the use of the property as a rooming house was not actively maintained ; it did not continue after December, 1943, when Gaffney died. Gaffney’s daughter testified, and it is corroborated by Lepinsky, that when Gaffney died the people were asked to leave, the house was closed and remained closed for a period of upwards of four years. There is no evidence that any effort was made to continue the business or to find a tenant as in Campbell v. South Plainfield, 118 N. J. L. 116, or Haulenbeek v. Allenhurst, 136 N. J. L. 557. Hor does it appear that it was sold as a rooming house as in Eilenberg v. Taggart, 119 N. J. L. 61. The present use is different from the use made of the property by Gaffney. He entertained roomers and paying guests; Mrs. Casper has three apartments there which she has ron ted out. Such a change or enlargement of the nse is fatal to its continuance. National Lumber Products Co. v. Ponzio, 133 N. J. L. 96; Lane v. Bigelow, supra.

We find no merit in the suggestion that the inactivity at the property from 1943 to December, 1947, was excusable because of or incident to the settlement of Gaffney’s estate. Members of his family were acting as his executors; they must have been familiar with the property, and their failure to protect the privilege of maintaining a non-conforming use is a measure of confirmation that the use was abandoned.

The second and third grounds of defense cover the right of the former owner to conduct a rooming house without a license. The plaintiff contends that the defense of a nonconforming use could not prevail because the use was not legally instituted, in that Gaffney had failed to comply with an -ordinancé which required him to have a license 'to carry on his business. The defense argues that the ordinance applied to boarding houses and lodging houses and not to rooming houses. We find it unnecessary to consider these points. The abandonment of the use makes it immaterial that it was not legally instituted.

The evidence of the violation was submitted on stipulation. It was sufficient to form a rational basis for the conviction and it will not be disturbed,

The judgment below is affirmed.

Bigelow, J. A. D.

(dissenting). I am unable to concur in the decision of my colleagues. Gaffney, the appellant’s predecessor in title, was operating a rooming house on the premises at the time of the adoption of the zoning ordinance. Our statute expressly authorizes the continuance of a nonconforming use. B. 8. 40:5 5-48. The right of Gaffney and his grantees to continue the use was a property right, a part of the land title, that could only be extinguished by acts or omissions indicating an intention to abandon it. In Haulenbeek v. Allenhurst, 136 N. J. L. 557 (E. &. A. 1948), the non-conforming use was discontinued for five years and yet it was held that there was no abandonment. Upon Gaffney’s death, the house was closed and remained unused and empty for four years and was then sold to the present owner, who immediately reopened it as a rooming house. There is nothing at all to show an intention to abandon the right so to use the property, and it was obviously against the interest of Gaffney’s heirs to lose this right. Indeed, when we remember that this is a 26-room house in a one-family residence zone in Long Branch, we may say that the building, as distinct from the land, has value only if a non-conforming use is allowable.

The present use is the same as the old. While appellant testified to renting “apartments,” the building inspector spoke of “renting rooms or apartments, whatever you may call them.” The word apartment may permissibly be employed as a synonym for room.

The respondent urges that Gaffney’s lack of a license is fatal to appellant’s case. If the operation of a rooming house on the premises had been a violation of a valid prior zoning ordinance, then, upon the adoption of a new ordinance, no right to continue the use would have existed. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183 (E. & A. 1929); Levy v. Ackerman, 133 N. J. L. 69 (Sup. Ct. 1945). Likewise, I assume, if a particular use is a nuisance per se or unlawful, for instance, the retailing of liquor within 200 feet of a school. In such cases, the illegality of the use adheres to the property itself. But the ordinance on which respondent counts did not bar the use of these premises as a boarding or lodging house; that was an entirely lawful use until the adoption of the present zoning ordinance. The licensing ordinance prohibited anyone from conducting or assisting in the conduct of a boarding or lodging house anywhere in the city without a license, under penalty of $50. The resulting disability belonged to the person and did not relate to the land. Counsel cite no case in which a failure to comply with such an ordinance was held to affect rights under a zoning statute. Also, the licensing ordinance appears to be a revenue measure. See Ruckman v. Bergholz, 37 N. J. L. 437 (E. & A. 1874).

Eor Hie above reasons, I believe the conviction should be reversed.  