On applications for writ of certiorari and for rules to show cause why mandamus should not issue.
For the prosecutors and relators, McDonough & McDonough and Merritt Lane.
For the defendants and respondents, William Newcorn.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
DONGES, J. Upon notice, application is made for a writ of certiorari to review the action of the Board of Adjustment of the inhabitants of the city of Plainfield on August 26th, 1938, denying the application of Dickinson and Freeburn, owners, and American Garage, Inc., tenant, that the board grant an exception to the zoning ordinance by permitting the use of premises Nos. 620-630 Park avenue, Plainfield, as a drive-in motor vehicle and gasoline service station and that a certificate of occupancy for said purpose be granted by said board, or that said board recommend in writing to common council that the use to which the premises are now put be permitted to continue; and to review the action of the board denying the appeal of applicants from the refusal of the city engineer to grant a permit for the alteration of said premises and a permit to continue said use of the premises and a certificate of occupancy for said premises; and to review the action of the board in refusing to reverse the action of the city engineer in refusing said permits and certificate to said applicants; and to review all the proceedings before said board with respect to said applications and appeals.
At the same time, notice of application for three writs of mandamus to compel the actions above mentioned was given, and the several matters are submitted together.
The record discloses that on June 4th, 1934, application was made to the building inspector of Plainfield for a permit to alter the building in question, which is located at the corner of Park avenue and West Seventh street, by removing the showroom fronting on Park avenue and thus extending the service station in the rear of the showroom to include the showroom, and making openings on the Park avenue front and permitting access to automobiles across the Park avenue sidewalk, and a separate permit for the installation of gasoline storage tanks and dual pumps in the section formerly used as a showroom. The part theretofore used as a gasoline service station had been accessible from the West Seventh street front only. The building inspector granted the permits and the work was begun.
On June 16th, 1934, adjacent property owners filed an appeal with the Board of Adjustment asserting that the premises were in a business zone where use for the proposed purposes was forbidden and that the alteration resulted in the extension of a conforming use to a non-conforming use. Thereupon applicants filed a bill in the Court of Chancery and an order to show cause with temporary restraint enjoining the Board of Adjustment and the building inspector from interfering with the work was allowed. Under this protection, the work was completed and the premises have been used continuously as a drive-in gasoline station.
The Board of Adjustment, after hearing, revoked the permits granted by the building inspector, holding that the premises were in a business zone, zoned against the contemplated use, that the alteration resulted in the extension of a conforming use to a non-conforming use in violation of the zoning ordinance and that the building inspector was without authority to grant the permit.
Thereupon, on application Mr. Justice Case granted a writ of certiorari, which was heard by him, sitting alone. He determined that the determination of the Board of Adjustment should not be disturbed and affirmed the proceedings (13 N.J. Mis. R. 260), saying: "The action of the adjustment board in setting aside the inspector's permit and in denying permission on its own authority was valid. The writ is discharged."
In the rule for judgment it was provided: "but without prejudice to the said prosecutors to institute such further proceedings as they may be advised are proper to frame and try out the right of the said prosecutors to extend the existing non-conforming use so far as it relates alone to the Seventh street frontage of the property of said prosecutors."
The Court of Errors and Appeals affirmed (116 N.J.L. 336), and remittitur was filed April 2d, 1936.
Pending review by certiorari, a consent order was entered in the Chancery proceeding, continuing sine die the hearing on the order to show cause, meanwhile continuing the interim restraint. On May 9th, 1936, a consent order was entered dissolving the interim restraint, without prejudice ...