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Schaible v. Board of Adjustment of Township of Millburn

Decided: September 30, 1946.

JOHN A. SCHAIBLE, JR., AND ANNA V. SCHAIBLE, PROSECUTORS,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MILLBURN, ALBERT F. DALY, BUILDING INSPECTOR OF THE TOWNSHIP OF MILLBURN, AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MILLBURN IN THE COUNTY OF ESSEX, DEFENDANTS



On writ of certiorari.

For the prosecutors, Ernest Brita and Harry Silverstein.

For the defendants, Reynier J. Wortendyke, Jr.

For Hanford C. Davis et ux., et al., intervening property owners, Whiting & Moore (Ira C. Moore).

Before Case, Chief Justice, and Justice Heher.

Case

The opinion of the court was delivered by

CASE, CHIEF JUSTICE. The writ of certiorari brings up the zoning ordinance of the Township of Millburn and a decision of the Township Board of Adjustment refusing to recommend to the Township Committee that prosecutors be given a permit to construct a building for office and storage purposes on the premises 217-225 Millburn Avenue, rear, Plate 5, Block 55, Lots 11-17.

The land in question is a cul-de-sac. It is about 180 feet back from Millburn Avenue to which it has access by a passageway 34 feet in width. On the map it bounds on Wyoming Avenue, but it has no practical access to that thoroughfare. The road there is on a sharp ascent to meet the bridge over the main line tracks of the Delaware, Lackawanna and Western Railroad Company. At one end the land is eight feet, and at the other -- a distance of 239 feet -- it is twenty feet, below the sidewalk grade. Its entire northerly line (336 feet), bounds on the railroad right of way which has three main tracks and a siding. On the south it abuts (345 feet) the rear line of business buildings which face on Millburn Avenue and are variously occupied by a candy and paper store, a hairdressing establishment, a real estate office, a gas station,

a dry-cleaning shop and a store premises now or recently vacant; also the rear line of a dwelling house property. To the west is the strip of land above referred to, lane-like in its proportions, which gives the property its only practical street outlet. Still beyond, to the west, is a one story corrugated steel building with adjoining bins and shed where the prosecutors now conduct the business which they wish to move to the proposed new structure; also a one story frame and concrete-block building with garage adjoining, owned (as is the present site of prosecutors' business) and occupied by the Zwigard Construction Company whose office is in a small structure fronting on Millburn Avenue. There is also a building occupied as a real estate office fronting on Millburn Avenue adjoining the west line of the above mentioned lane or outlet. The foregoing are all of the structures and uses on a rectangular town block (including prosecutors' lands) bounded on the north by the Delaware, Lackawanna and Western Railroad Company (about 1,100 feet), on the south by Millburn Avenue (also about 1,100 feet), on the east by Wyoming Avenue (about 347 feet) and on the west by Beverly Road, a short street which runs northerly from Millburn Avenue for a distance of about 250 feet and comes to a dead end at the railroad tracks. On the far corner of Millburn Avenue and Beverly Road is a one story building housing an Atlantic & Pacific Super-Market, with parking facilities between the building and Beverly Road. Such is the setting of the applicants' lands and such is the immediate neighborhood of which it is a part.

To recapitulate the surroundings of the lands in question: on the north is the railroad, with an average run of 115 trains per day; on the east is an inaccessible ramp, a county road which carries considerable motor traffic; on the south are the rear lines of divers business properties; and on the west are buildings comparable in use but inferior in architectural design to the building which the prosecutors propose to erect. It may not be reasonably argued that the land constitutes a border area for the protection of an abutting residence zone. The tract is isolated by surrounding barriers. No objection to the proposed structure comes from the owners of the adjacent

properties facing on Millburn Avenue or from the Zwigard Construction Company, or, of course, from the railroad company. There is objection from several owners of properties on Glen Avenue (a street which roughly parallels the railroad on the opposite side of the tracks) and whose lands at the rear bound on the railroad; and there is ...


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