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Stout v. Mitschele

Decided: April 11, 1947.

PRESLEY D. STOUT, KATHERINE HART HEDDEN, ALBERT BERKES AND ANNA BERKES, HIS WIFE, CHARLES B. VINCENT, JR., AND ADELE C. VINCENT, HIS WIFE, PROSECUTORS,
v.
HERBERT J. MITSCHELE AND MARY A. MITSCHELE, HIS WIFE, THE TOWNSHIP OF LIVINGSTON, A MUNICIPAL CORPORATION, AND THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LIVINGSTON, RESPONDENTS



On certiorari.

For the prosecutors, Grosso & Grosso and Robert E. Beck.

For the respondents Herbert J. Mitschele and Mary A. Mitschele, Alexander Waugh.

For the Township of Livingston, Edward Gaulkin.

Before Justices Bodine and Wachenfeld.

Bodine

The opinion of the court was delivered by

BODINE, J. The writ in this case brings up for review the action taken by the Board of Adjustment of the Township of Livingston on August 5th, 1946, and the approval by the Township Committee of the recommendation of the board that a permit be issued to Herbert J. Mitschele to build a 40-stall, two-story horse barn on premises located in the residence A zone of the township.

The premises in question do not abut and are more than 150 feet beyond the boundary line of any district in which the structure or use is authorized by the zoning ordinance.

The permit was sought by way of a variance to the zoning ordinance.

The property in question consists of a 9-acre tract fronting east on Mount Pleasant Avenue and a rear parcel of 14 acres reached by means of a right of way.

The zoning ordinance in effect in 1931 permitted farming, dairying and truck gardening in a residence A zone. By amendment adopted September 21st, 1936, farming, dairying and truck gardening were permitted in a residence A zone "provided, however, that every building or plant for the treatment, pasteurization or bottling of milk and every barn or stable for the accommodation of more than five horses and more than five cows shall be at least 300 feet distant from every street or adjoining property line and at least 500 feet distant from any existing dwelling house."

In 1931 and until 1943 the premises were used for dairy purposes, the owner frequently having ...


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