For the prosecutor, Heller & Laiks (Aaron Heller).
For the respondent, John G. Dluhy.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. This is on a writ of certiorari to review the action of the Municipal Council of the City of Clifton in refusing a license, applied for in December of 1946, to Frank Chipolone, Sr., "to deal in waste paper" upon premises hereinafter mentioned. It is also the return of a rule to show cause why a peremptory or alternative writ of
mandamus should not be granted to command the issuing of the license -- a precautionary measure meant to depend upon a decision of the certiorari proceedings in favor of the prosecutor.
The location for which the permit is asked is not precisely described in the application; it is designated by a map or sketch which is attached to the application and which is interpreted by the testimony and by prosecutor's brief as being 50 feet wide and 200 feet in depth running from East Clifton Avenue to Seger Street and as consisting of two lots numbered 71 and 73 East Clifton Avenue and two lots numbered 38 and 40 Seger Street.
On March 20th, 1928, the city passed a zoning ordinance which forbade the use of any building on premises in any of the residence zones or business zones for the storage or baling of scrap paper, rags or junk; such a use, subject to conditions, was permitted in industrial zones. The ordinance provided for the appointment of a zoning board and gave to that board authority over disputes concerning the application of the ordinance and over the granting of exceptions. The East Clifton Avenue frontage of prosecutor's property is in the business zone and the Seger Street frontage is in a residence zone. Therefore all parts of the property are zoned against the proposed use. No exception has been given or other action taken by the zoning board with respect to any portion of the property.
On November 17th, 1936, the city passed an ordinance to license and regulate junk shops and junk yards; the ordinance defined junk as any waste or discarded material and specifically included paper -- the purchasing, selling, storing or dealing in the same; it forbade the operation of such a business without a license and required the applicant to file with the city clerk a written application stating, among other things, the name and residence of the applicant and the place where the business was to be conducted and further required the applicant to give notice to all property owners within 200 feet of the property at least five days prior to the time fixed for the hearing. The license was sought under that ordinance.
The notice served by prosecutor upon property owners with respect to his application stated that the premises were those at 71 and 73 East Clifton Avenue. It did not mention the Seger Avenue lots. At the hearing had on the application prosecutor asked that a stenographer hired by him for the purpose, be sworn and permitted to take the testimony stenographically. That was done, but prosecutor has not provided us with a ...