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Albright v. Johnson

Decided: December 27, 1946.

ANNA A. ALBRIGHT AND FRED AUG, JR., EXECUTORS OF THE ESTATE OF OTELIO AUG, DECEASED, PROSECUTORS,
v.
J. CORY JOHNSON, TOWN CLERK AND SECRETARY OF THE BOARD OF ADJUSTMENT OF THE TOWN OF BLOOMFIELD, ET AL., RESPONDENTS



On certiorari.

For the prosecutors, Thomas A. Markey.

For the respondents, Edward C. Pettit (John A. Errico, of counsel).

Before Justices Bodine, Perskie and Wachenfeld.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This is a zoning case. R.S. 40:55-30, et seq. Broadly stated, the basic question for decision is whether the denial of prosecutors' application for a variance constitutes, in the circumstances exhibited, an unnecessary invasion

of their fundamental right to the legitimate use of their property.

Prosecutors are the owners of premises, consisting of about two and one-half acres, more commonly known as No. 20 West Passaic Avenue, in the Town of Bloomfield, New Jersey (hereafter referred to as Town). The premises are about 100 feet east of Broad Street, a main connecting highway. The area fronting West Passaic Avenue, another main connecting thoroughfare, is vacant land. There are presently erected on prosecutors' lands a farm house, a barn, outbuildings, a two-car garage and a green house. The premises have been owned by prosecutors' ancestors since 1909 and have been owned and administered by prosecutors since 1941.

The surrounding property is used for commercial purposes. To the north of prosecutors' property is vacant land; to the east, and within a distance of 150 feet, are stores and a small garage and gasoline pumps facing Broad Street; to the south and directly across the property, is a gasoline station; and to the west there are more stores.

On November 17th, 1930, the Town adopted a zoning ordinance. By this ordinance the entire frontage of the premises (West Passaic Avenue) for a depth of 150 feet was placed in what is characterized, under section 9 of the ordinance, as "Medium Volume Business Zones." In such zones, so far as is here pertinent, the ordinance permits the use of the land or buildings erected thereon as a "public garage" and as an "automobile sales room" but prohibits the use of the premises as a "filling station." Thereafter, the Town, on September 15th, 1941, amended the ordinance of 1930. By this amendment the right to use the land and buildings thereon were limited to an "automobile sales room" and to a "parking lot for automobiles." The prohibition against the use of a "filling station" was continued.

Prosecutors from the time they became the owners of the premises in 1941 tried to sell same; they listed it with about forty real estate brokers. But we are told that it was not until recently that they received an offer of purchase. This ...


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