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Vassallo v. Board of Commissioners

Decided: October 10, 1940.

SAMUEL VASSALLO, LEONARDO VASSALLO AND TERESA VASSALLO, PROSECUTORS-APPELLANTS,
v.
THE BOARD OF COMMISSIONERS OF THE CITY OF ORANGE, A MUNICIPAL CORPORATION OF THE COUNTY OF ESSEX, DEFENDANT-RESPONDENT



On appeal from the Supreme Court, whose opinion is reported in 124 N.J.L. 153.

For the appellants, Philip Singer (Leonard J. Emmerglick, of counsel).

For the respondent, Edmond J. Dwyer (Joseph F. Zeller, of counsel).

Rafferty

The opinion of the court was delivered by

RAFFERTY, J. Appellants are the owners and operators of a motor vehicle junk business in the city of Orange and have been engaged in this business at a particular site since 1927. At the commencement of the business appellants acquired approximately 17,000 square feet of land for the purpose and at the time of the adoption of the original ordinance hereafter referred to had expanded their premises to approximately 30,000 square feet. Of their holdings, approximately 3,250

square feet are in a residential zone and with respect to this particular area appellants do not press the appeal, but evince a willingness to forego any claim of right to operate a motor vehicle junk business thereon. The remainder of the premises is in an industrial zone.

Respondent municipality enacted an ordinance in October, 1937, regulating and licensing the motor vehicle junk business or motor vehicle junk yards in the municipality. In November, 1938, a supplemental ordinance was adopted substantially revising the provisions of the earlier ordinance. The original enactment does not prescribe any extreme measurement of premises that may be occupied as and for a motor vehicle junk business or motor vehicle junk yard but describes the word "premises" as meaning "any building, open air plot of ground, yard, lot or parcel of land * * * wherein used motor vehicles are dismantled, and used parts of motor vehicles are stored, or offered for sale." The annual license fee fixed therein is in the sum of $50.

The supplemental ordinance provides that the "premises * * * shall be completely enclosed with and by an eight foot (8) high fence of such construction that the interior of the licensed premises, as well as the contents stored therein shall not be viewable from the street surface or the surface of property adjacent to or abutting upon the said licensed premises." The fence is to be of solid construction and the contents of the premises are not to be stored or piled higher than seven feet. No premises exceeding 3,500 square feet in area is to be licensed. This limitation of premises is further circumscribed by the provision that if the area exceeds thirty-five feet fronting on any street or is greater than 100 feet in depth no license shall issue. The license fee is revised to require payment of ten cents for each square foot of licensed premises with a minimum fee of $200 per annum.

The original ordinance is not under attack in this case and we express no view respecting it. Reference to its provisions in this opinion are considered only so far as they are a part of and included within the supplemental ordinance.

Appellants made application for license under the original ordinance in June, 1938. This application appears to have

been denied in September, 1938. No reasons for the denial of application are stated, nor was any formal action whatsoever taken by the municipality with respect thereto. The letter advising of the rejection was forwarded by the Director of Public Safety without any formal direction from the Board of Commissioners. The director testified that the commissioners agreed at what "might have been a private meeting," that, if Vassallo "didn't stop working, to go ahead and issue the letter." Such singular disposition of the rights of appellants is patently illegal. Subsequent to the adoption of the supplemental ordinance appellants renewed their application for a license but were unable ...


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