For the prosecutor, Edward Sachar.
For the respondents, William Newcorn.
Before Justices Bodine, Heher and Perskie.
BODINE, J. This writ brings up for review the action of the board of adjustment of the city of Plainfield in sustaining the decision of the inspector of buildings denying to prosecutor a permit to remove a space twenty-five feet in depth from the first floor of his garage building situate at 112-118 East Fourth street, Plainfield, New Jersey, in order to install a drive-in service station and also to review the refusal of the board of adjustment in failing to make any recommendations with reference to the contemplated improvement to the common council.
Plainfield adopted the zoning ordinance in question October 2d, 1933. Section 3 prohibits in business zones the erection or alteration of buildings arranged or intended or designed to be used for motor vehicle service stations, except as permitted in section 13. Section 13 provides that the board of adjustment may "recommend in writing to the common council on appeal in specified cases, that a structure or use be allowed in a district restricted against such structure or use where the lands in respect to which such recommendation is made do not abut a district in which such structure or use is authorized by this ordinance, or where such lands are more than one hundred and fifty feet beyond the boundary
line of the district in which such structure or use is allowed by this ordinance. Whereupon, the common council may, by resolution, approve or disapprove such recommendation; and in case such recommendation shall be approved by the common council, then the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use."
It seems to us unnecessary to consider these provisions of the zoning ordinance. Zoning ordinances are in derogation of the common law. They are restrictions upon the use which the landowner enjoyed at common law to use his property as he pleased, so long as he did not injury his neighbor. The quoted provision, if it precludes the alteration of a garage in a business zone is clearly unreasonable. It is not argued that a special act of the common council could save an otherwise defective ordinance.
Section 7 of the ordinance in question, however, seems controlling in the present situation and it provides as follows:
"Any non-conforming use existing at the time of the passage of this ordinance may be continued and any existing building designed, arranged, intended or devoted to a nonconforming use, may be reconstructed or structurally altered and the non-conforming use therein changed subject to the following regulations:
"a. The structural alterations made in such building shall in no case exceed fifty per cent. of its assessed value, nor shall the building be enlarged unless the ...