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Cortese v. Board of Adjustments of the City of Summit

New Jersey Supreme Court


Decided: January 29, 1948.

ANGELO CORTESE AND MARY CORTESE, PROSECUTORS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF SUMMIT, DEFENDANT

On certiorari.

For the prosecutors, Jacob R. Mantel.

For the defendant, Peter C. Triolo (Fred A. Lorentz, of counsel).

Before Justices Donges, Colie and Eastwood.

Colie

[136 NJL Page 456]

The opinion of the court was delivered by

COLIE, J. The prosecutors were allowed a writ of certiorari to attack the zoning ordinance of the City of Summit and the denial by the Board of Adjustment of an application for a variance so as to permit the use of prosecutors' premises at 302 Springfield Avenue, Summit, for business purposes.

The state of case does not contain the ordinance nor do the prosecutors argue the invalidity of the ordinance in their brief. That point is therefore deemed abandoned and the sole question is whether the denial of a variance was proper.

The property of the prosecutors is a two and a half story frame dwelling located at the southeast corner of Springfield Avenue and Irving Place, Summit, New Jersey. Springfield Avenue is the main business street of the city and is zoned for business from the westerly border of the municipality up to a point within eighty-five feet of the premises in question, measured along the southerly line of Springfield Avenue. To the east of the premises in question, both sides of Springfield Avenue are within a zone in which business is prohibited. There is no question but that many and varied businesses are carried on within but a few hundredths of feet to the west of 302 Springfield Avenue but excepting for one non-conforming use antedating the enactment of the zoning ordinance, Springfield Avenue to the east is entirely residential. There was testimony adduced before the Board of Adjustment pointing toward the fact that there was no available space in the areas zoned for business and that unless the requested variance was granted, prosecutors would be unable to continue in the tailoring business which they had carried on in Summit for many years. On this phase the evidence was unconvincing and there was no showing of any real effort to find a location within the business zone where prosecutors could carry on the tailoring business. The prosecutors have not established a case of unnecessary hardship and without the presence of that factor, the Board of Adjustment may not grant an application for a variance. Scaduto v. Bloomfield, 127 N.J.L. 1.

The writ is dismissed, with costs.

19480129


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