On appeal from the Supreme Court.
For the appellants, Thomas L. Parsonnet (Joseph A. Ward, of counsel).
For the respondent, Kristeller & Zucker (Saul J. Zucker and Charles Silber, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is a zoning case. R.S. 40:55-30, et seq. The meritorious question for decision is whether appellants were properly ordered to issue a permit to respondent to change her existing non-conforming structure of long standing, and to facilitate the non-conforming uses made thereof as an automobile service station, to a modern drive-in automobile service station.
Respondent, Annie Lane, is the owner of the premises located at the southwest corner of Heller Parkway and Woodside Avenue which are more commonly known as 22-28 Heller Parkway, Newark, New Jersey, hereafter referred to as City. Said premises have a frontage of 100 feet on Heller Parkway and Woodside Avenue. For over 22 years, long prior to and subsequent to the zoning ordinance passed by the City there were on said premises a public garage, and some 33 individual garages. One or two of the individual garages were converted into a store for the sale of automotive products, and one or two of the others were converted into an automobile repair station. These premises were built around an interior court in which there were installed and operated two gasoline pumps for the sale and distribution of gasoline; and respondent also sold oil and related products on said premises. All these
activities were conducted pursuant to license issued to respondent by the City. Additionally, the City was directed by writ of mandamus, allowed on May 7th, 1946, by the Supreme Court, to issue a license to respondent to permit the storage of 4,500 gallons of gasoline on said premises. It is conceded that the aforestated existing structures and uses made of them, at the time and subsequent to the passage of the zoning ordinance by the City, were continued on the authority of R.S. 40:55-48 (non-conforming building and uses; continuance of). The premises, under the zoning ordinance, are located in a "Third Residential Zone."
This was the situation when respondent made an application to the building inspector of the City for a permit to change the structures, and to facilitate the non-conforming uses made thereof, to a modern drive-in service station. This change contemplated the removal of approximately 35 feet of the building fronting on Heller Parkway for the purpose of enlarging the entrance to the interior court from its present eight foot driveway to an entrance of approximately 43 feet and to modernize the structures. The building inspector and the secretary of the Board of Adjustment (the latter pursuant to ordinance of the City) disapproved the application on the grounds that the proposed changes would be "disadvantageous to the owners of residences" and be an "increase [in the] present hazardous conditions, contrary to the public welfare and safety," and that it would "increase the danger to the children passing to and from the two schools on the adjacent corner." Parenthetically, let it be observed that there are no facts to support these grounds; they are the conclusions of the secretary of the Board of Adjustment stated in affidavit form. And the disapproval was further based upon the grounds that the permit comprehended changes contrary to R.S. 40:55-48 (non-conforming use), and that such changes were also contrary to the following sections of the City zoning ordinance, namely, section 5 (use regulations controlling third residential districts), and section 12 (non-conforming buildings and uses), and section 13. Section 12 is in the words of R.S. 40:55-48 but added thereto is the following:
"provided, however, that nothing contained herein shall be deemed to constitute a waiver of a violation of any other ordinance therefore enacted. No non-conforming use shall be extended at the expense of a conforming use."
And, section 13 reads as follows:
"7. Notwithstanding the provisions of this section, no building or premises used in whole or in part as a public garage shall be altered or enlarged, nor shall the character of its occupancy ...