On writ of certiorari and on rule to show cause why writ of certiorari should not issue.
For the prosecutors, William Boorstein.
For the defendants, Aaron A. Melniker, William Rubin, Jesse J. Feinberg and A. Alfred Fink.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
DONGES, J. The defendant John Notarmaso, having sold the premises at 116 West Twenty-first Street, Bayonne, in which he has for many years conducted a live poultry business, determined to move such business to No. 67 West Twenty-first Street. He made application in August, 1944, for transfer to the new premises of his business which was licensed under an ordinance of the city governing such establishments. Informed by the city health authorities of the changes in the premises necessary to comply with the regulations, he proceeded to have alterations made and they were completed in March, 1945, and were found satisfactory to the health officials.
About this time, on March 20th, 1945, the governing body of the city, after the necessary preliminary steps, adopted a city zoning ordinance. This ordinance placed the premises in question within a residential zone wherein the operation of poultry markets is prohibited, although in the same block, on the opposite side of the street are two such markets that have been operating there for some years. On April 19th, 1945, the defendant Notarmaso made formal application for the transfer of his license and for permission to operate at 67 West Twenty-first Street. Residents in the immediate neighborhood protested. At that time a Zoning Board of Adjustment had not as yet been appointed and the governing body, the Board of Commissioners, undertook to deal with the matter itself. A hearing was held at which the protestants were heard and the defendant was heard, following which the Commissioners by resolution approved and permitted the transfer of the license and the operation of the business at the new location.
Certiorari was allowed to review that action and that writ is No. 236 of the October term. Objections to the operation of the market are presented in that case both under the zoning ordinance and under the ordinance governing poultry markets in particular.
After that case had been presented a Board of Adjustment was appointed and commenced to function under the ordinance. Conceiving the possible invalidity of some of the procedural steps theretofore taken, the defendant Notarmaso filed a petition with the Board of Adjustment requesting that body to recommend, under the power given it by the ordinance, to the governing body that a variance of the zoning ordinance be permitted for the premises in question. Notices were served on property owners in the vicinity, the validity of which service is challenged, of a hearing on the question. A hearing was held at which both sides appeared, represented by counsel, and testimony was taken. The Board of Adjustment recommended the variance and the Board of Commissioners received and adopted such recommendation. Case No. 233 of the January term is a rule to show cause why a certiorari
should not be allowed to review the second proceeding and its result. Counsel have stipulated that, if the court should determine a writ should go, the cause should be considered as presented on a writ for final determination upon all the questions raised. There is thus presented for decision on the merits the question of the propriety of the operation of a poultry market at this location in the light of the provisions of the zoning ordinance and of the ordinance regulating live poultry markets.
With respect to the latter ordinance, one of the questions raised in the first case concerned the validity of the entire ordinance due to an alleged defect in the penalty clause, but that clause before the ...