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Phillips v. Town of Belleville

Decided: February 25, 1947.

RUSSELL B. PHILLIPS AND G. WILLARD PHILLIPS, PARTNERS TRADING AS PHILLIPS BROTHERS, PROSECUTORS-RELATORS,
v.
TOWN OF BELLEVILLE ET AL., RESPONDENTS-RESPONDENTS



On certiorari and rule to show cause.

For the prosecutors-relators, Max N. Schwartz (Joseph Weintraub, of counsel).

For the respondents-respondents, Lawrence E. Keenan and Robert C. Gruhin, intervening with respondents.

Before Justices Bodine, Perskie and Wachenfeld.

Wachenfeld

The opinion of the court was delivered by

WACHENFELD, J. This writ of certiorari brings up for review the actions of the building inspector and Board of Adjustment of Belleville in refusing to issue a permit to prosecutors to erect a motor vehicle service station. There is also a rule to show cause why a writ of mandamus should not be issued to compel the granting of the permit.

The prosecutors contracted to purchase several parcels of vacant land located at the southeast corner of Union Avenue and Catherine Street in the Town of Belleville. The property is situated in a business zone which extends for three blocks on the eastern side of Union Avenue and a block less on the western side of Union Avenue. The business zone is very narrow and is situated to serve the surrounding residential A and B zones.

On April 8th, 1946, the prosecutors made an application to the License Bureau of the Department of Revenue and Finance for a gasoline service station -- mercantile license, which the Board of Commissioners of the Town of Belleville approved the following day. Thereafter, prosecutors applied to the building inspector for a permit to build a gasoline station on the instant property but he refused to grant the permit and referred the applicants to the Board of Adjustment. The prosecutors immediately appealed to the Board by written petition, and after a regular meeting at which testimony was taken, the Board denied the prosecutors an exception from the zoning ordinance.

There are several ordinances herein concerned. In 1923 the town adopted a zoning ordinance. In section 3, paragraph 15, the ordinance prohibited in business zones a "Motor vehicle service station, except as permitted in section 12." The latter section, after establishing a Board of Adjustment, provides:

"The Board of Adjustment may, in a specific case, after public notice and hearing, and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purpose and intent, without changing the boundaries of

the respective zones as follows: * * * (9) Permit in a business zone, subject to the prohibition of Section 5, the construction, extension, alteration or conversion of a building intended for the storage or repair of motor vehicles or for a motor vehicle service station. No permit shall be issued for a motor vehicle service station in a business zone unless the land upon which said proposed motor vehicle service station is to be constructed shall have a street frontage of at least eighty feet and a minimum depth of at least 100 feet. However, if the land upon which the said proposed motor vehicle service station is to be constructed is located on a corner lot at a street intersection it shall have a minimum dimension of fifty feet by one hundred feet."

The ordinance under which the Board of Commissioners unanimously granted permission to the prosecutors to erect a service station is entitled "An Ordinance Regulating the Location of Buildings Intended to be Used as Motor Vehicle Service Stations" and ...


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