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Fonda v. O''Donohue

Decided: November 10, 1932.

HARRY B. FONDA ET AL., PROSECUTORS,
v.
CORNELIUS C. O'DONOHUE, W. BRADFORD SMITH, JOSEPH E. AMOROSE, HARRY T. CALLAHAN AND ANDREW W. ALLEN, COMPOSING THE BOARD OF ADJUSTMENT OF THE CITY OF ORANGE, ET AL., RESPONDENTS



On certiorari.

For the prosecutors, Roger Hinds.

For the respondents, Hood, Lafferty & Campbell (Harry Schaffer, of counsel).

Before Justices Trenchard, Case and Brogan.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is a zoning case. The prosecutors (eight neighboring owners) obtained this writ to review the decision and resolution of the Orange board of adjustment overruling the building inspector, and recommending a special exception to the zoning ordinance in favor of the respondent Woman's Club of Orange permitting a structure and uses in the residence "A" zone admittedly prohibited by the ordinance; also reviewing the concurring action and resolution

of the board of commissioners authorizing the issuance of the permit.

The Woman's Club applied to the building inspector for a permit to erect a club house, auditorium and concreted parking area. The inspector refused the permit on the ground of the prohibition of the ordinance. The Woman's Club appealed to the board of adjustment, asking for a special exception.

Since the premises do not abut, and are not within one hundred and fifty feet of, any district where the proposed structure and use would be permitted, the appeal was taken under subdivision 4 of section 9 of the zoning statute (Pamph. L. 1928, ch. 274), empowering the board of adjustment to recommend, and the governing body to approve or disapprove the issuance of a permit to the appellant.

On November 30th, 1931, the board of adjustment, over the protests of the prosecutors and other adjacent and neighboring owners, and without taking any proof, overturned the adverse decision of the building inspector and passed its resolution recommending to the board of commissioners that the permit be issued; and on the following day the board of commissioners, without taking any proof, passed a resolution "concurring" in the recommendation of the board of adjustment and "authorizing" the issuance of the permit.

On December 16th, 1931, the prosecutors were allowed this writ.

The prosecutors assign numerous reasons for reversal. Without expressing any opinion respecting the others, we confine ourselves to the one which we deem to be fundamental and plainly insurmountable, namely, that the action of the respondent board was illegal because taken without any ...


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