For the prosecutors, Julius Kwalick.
For the defendants the township committee of the township of Union in the county of Union, the Board of Adjustment of the township of Union and the building inspector of the township of Union, Charles Wagner.
For the defendant David Ratzman, Connolly & Hueston.
Before Brogan, Chief Justice, and Justices Donges and Porter.
BROGAN, CHIEF JUSTICE. A writ of certiorari was allowed to review the issuance of a building permit "recommended by the Board of Adjustment of the Township of Union * * * granted by the Township Committee of the Township of Union * * * and issued by the building inspector * * * on August 24th, 1938, to David Ratzman."
The state of case contains a return to the writ and in addition depositions, the taking of which was allowed by order of the Supreme Court, consented to by counsel for all the parties.
The action complained of is that a variance to the zoning ordinance of the township of Union was ordered by the municipal authorities; and the resolution of the Board of Adjustment, recommending to the township committee "the granting of the variation" of the zoning ordinance "so as to permit the erection of a gasoline station" on certain lots on North avenue, as well as the resolution of the township committee approving "the said recommendation of the Board of Adjustment for a variance in the zoning ordinance of Union Township so as to permit the erection of a gasoline station upon lots" on North avenue, &c., are under review.
The situation existing prior to the variation challenged was that David Ratzman agreed, in writing, to buy said lots from Harry Dill, owner thereof, but only on condition that a permit to erect a gasoline station was obtained. The building inspector having refused to issue such building permit, an application for variation from the requirements of the zoning ordinance, verified by Ratzman, was made stating that he had been authorized by Dill, the owner of the land, to
make the application in his behalf. The matter was placed before the Board of Adjustment.
At a meeting of that board on July 11th, 1938, all of the present prosecutors owning property within a radius of two hundred feet appeared by counsel. Objections to the variance were heard and discussed. No witnesses were sworn. The matter was put off for a week, at which time the board passed one of the resolutions under review, recommending to the township committee that the variance be granted. The resolution recites "that the Board members inspected the premises involved." Counsel for the prosecutors was present when this resolution was adopted.
This recommendation had the consideration of the township committee at its meeting on July 26th; decision was reserved "pending further investigation," &c. Subsequently, on August 23d, the recommendation of the Board of Adjustment was adopted. In the resolution approving the said recommendation it is recited that the governing body had considered the objections, had made investigation of the locality and the adjacent territory, and taken into account "the applicable facts and circumstances." The depositions taken make it quite clear that each of the ...