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Pieretti v. Johnson

Decided: April 9, 1945.

JOSEPH PIERETTI, JR., PROSECUTOR,
v.
J. CORY JOHNSON, TOWN CLERK, ETC., ET AL., DEFENDANTS



On writ of certiorari.

For the prosecutor, Brunetto & Welsh.

For the defendants, Edward C. Pettit, William Huck, Jr., and John A. Errico.

Before Brogan, Chief Justice, and Justices Donges and Perskie.

Donges

The opinion of the court was delivered by

DONGES, J. The writ of certiorari in this cause brings up for review a determination of the Board of Adjustment of the Town of Bloomfield, which affirms the rejection by the inspector of buildings "on an application for a permit to renovate a building and to make an addition thereto upon certain premises" of prosecutor.

It appears that prosecutor entered into possession of the land in question in 1927, and has conducted a soda bottling

plant upon the premises from that time. In 1930, the governing body of the municipality passed an ordinance establishing a "Small Volume Residential Zone," in the northerly end of the town, which included prosecutor's land. On October 7th, 1935, the ordinance was amended to designate a part of the above mentioned area as "Small Volume Residential Zone A." This zone included prosecutor's land. By stipulation it is agreed that prosecutor's business, conducted on the premises within this zone, is not within the permissive uses, designated in either the original ordinance or the amendment thereto.

On January 25th, 1944, application was made to the inspector of buildings for a permit, in the following language: "I propose to enclose the rear portion of the present building by making an addition of cinder block approx. size 40' X 50' one story in height. Also renovate deteriorated portions of building."

After refusal by the inspector of buildings, appeal was taken to the Board of Adjustment, which held a hearing at which evidence was submitted on behalf of prosecutor and objecting residents in the area. The Board adopted a resolution refusing to grant a variation from the zoning ordinance and denying the permit.

It is settled that the owner of premises which, at the time of the adoption of a zoning ordinance, were used for nonconforming uses, may continue such use. He may, also, restore or repair buildings in which such use existed. (R.S. 40:55-48.) He may not, however, enlarge such use without express permission from appropriate authority. DeVito v. Pearsall, 115 N.J.L. 323; Green v. Board of Commissioners, 131 Id. 336; Meixner v. Board of Adjustment, &c., 131 Id. 599.

In the instant case it does not appear that the action of the Board of Adjustment was capricious or arbitrary. On the contrary, it appears that an extension of the business of prosecutor would be a serious disadvantage to the residents of the immediate vicinity, which is a strictly residential area. Excepting prosecutor's plant, the only other ...


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