Decided: March 17, 1948.
HARRY KRILOV, PROSECUTOR,
THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, DEFENDANT
On writ of certiorari.
For the prosecutor, Harold Fisher and Martin Gelber.
For the defendant, Joseph A. Ward and Thomas L. Parsonnet.
Before Case, Chief Justice, and Justice Burling.
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The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The writ of certiorari brings up the refusal of the Board of Adjustment of the City of Newark to "recommend to the City Commission the erection and operation of an automobile repair shop" at 146-148 Hudson Street.
It does not clearly appear how far distant the location is from a zone where the proposed use is permitted by the city zoning ordinance. Apparently the distance is such that the board has not the authority to grant a variance inasmuch as the action brought before us is a refusal to recommend the variance to the City Commission. The applicant produced no witnesses at the hearing accorded by the commission. His attorney made a presentation in his behalf, and he himself said a few sentences. There was much opposition from numerous property owners and residents of the vicinity. No interpretation of the ordinance or any of its provisions is sought. The application is for a variance to permit the construction and use of an "automobile repair shop (no body or fender work)." Much is said in prosecutor's behalf on the proposition that he does not propose to do body or fender
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work, but it does not appear that the city ordinance in prohibiting the general classification recognizes that exception. It is conceded that the neighborhood is heavily congested with standing or parked automobiles and moving traffic, and while it is asserted that the proposed use would not increase that congestion, the probability is otherwise. The applicant is presently engaged in a similar business a short distance away, and one of the witnesses complained that he causes much trouble there. The secretary of the Board of Adjustment reported that he could find no permit in the files of the board for such use at that location. An earlier application by another person for permission to build and operate a station for the making of automobile repairs and for automobile service and gasoline sales at the proposed location had been denied.
The burden of proving that the board action was not a lawful disposal of the question was upon the applicant. The general rule is that the decision of the adjustment board after a hearing is presumably correct, and that where it follows the ordinance such decision must be shown to have been clearly against the great weight of evidence presented to the board. Cook v. Board of Adjustment, 118 N.J.L. 372. The prosecutor has not met that burden.
The writ of certiorari will be dismissed, with costs.