For the prosecutor, Aaron Heller and Murray A. Laiks.
For the defendants, William F. Gorman.
Before Case, Chief Justice, and Justices Parker and Burling.
The opinion of the court was delivered by
BURLING, J. This is a zoning case. Application was made by the prosecutor upon behalf of his mother, Minnie E. Sitgreaves, to the Building Inspector of the Town of Nutley for a permit to construct a new building of blocks, 21 feet by 50 feet to be located upon her land approximately 50 feet from the front line of the lot and to be used in operation of the business of repairing automobiles. The size of the lot was 25 feet by 102 feet.
The application was denied upon April 16th, 1946, for the following reason: "The erection of a building to be used for a garage to repair automobiles would violate Section 13 of the Nutley Zoning Ordinance." The premises known as Block 367, Lot 18, located at 93 Conover Avenue, according to the Zoning Map of the Town of Nutley, are located in a Residence "B" District. By the provisions of the said Zoning Ordinance, the erection of said garage and the operation of a business was prohibited in a Residence "B" District under Section 13 of said above mentioned ordinance. Appeal was filed by the prosecutor to the Board of Adjustment of the Town of Nutley upon the following ground of appeal: "Decision appealed because it constitutes a hardship on appellant. Property affected is a lot having a 25 foot frontage on which no dwelling house may be erected." On April 28th, 1946, a meeting of the Board was held to hear the appeal. The Board denied, by unanimous vote of the members present (four), the application and made the following finding:
"This appeal coming on to be heard before the Board of Adjustment of the Town of Nutley, County of Essex, State of New Jersey, on notice, and the Board having viewed the premises in question and having received letters and petition on behalf of persons interested and having decided and determined that the restrictions in the Zoning Ordinance are reasonable in prohibiting the use of the premises mentioned in said appeal for the purpose described in the application for permit and that to permit such use would not be in the interest
of all persons concerned and contrary to the spirit of the State Zoning Law and the Zoning Ordinance of the Town of Nutley."
The prosecutor was represented at said hearing by an attorney. At the hearing many remonstrances were made against granting the permit and none spoke in favor thereof. Seven persons withdrew their approval as expressed in a previously favorable petition of twenty persons lodged with the Board.
R.S. 40:55-46 of the Zoning Act provides:
"Certiorari; when allowed; effect. No writ of certiorari to review any decision of the board of adjustment shall issue unless application therefor be made within thirty days after the filing of the decision in the office of the board. The allowance of the writ shall not stay proceeding upon the decision appealed from unless so ordered by the court."
No such application was made. On July 15th, 1946, a written paper entitled "appeal" was filed with the board by the prosecutor at the instance of a new attorney who appears in this proceeding for him. On July 27th, 1946, a meeting of the Board was held. From the minutes of the Board it appears that a request for another hearing was made and the attorney requested a variance. No new written application for permit had been filed with the Building Inspector. The Board decided that "there not being any additional grounds over the appeal of April 28th that the Board will not continue with this hearing."
It would appear that the proper prosecutor was Minnie E. Sitgreaves unless the present prosecutor was a person aggrieved within the provisions of R.S. 40:55-42 and that does ...