For the prosecutors, Heller & Laiks (Aaron Heller, of counsel).
For the respondents, Albert V. D'Amato (Raymond Flanagan, of counsel).
Before Case, Chief Justice, and Justices Burling and Jacobs.
The opinion of the court was delivered by
JACOBS, J. This matter is before the court pursuant to a writ of certiorari to review a decision of the respondent, Board of Adjustment of the Borough of East Rutherford, dated July 17th, 1947, which denied permission to prosecutors to continue their garage business at 920 Paterson Avenue, East Rutherford.
In 1923, Nicholas Spickofsky purchased premises located at 920 Paterson Avenue, East Rutherford, and thereafter began using a garage, located on the premises, as an auto repair establishment. In 1934, he transferred the operation of the garage business to his sons who are the prosecutors herein and they have continued the operation of the business
to date. In 1947, a fire destroyed the roof and front doors of the garage building, leaving the three walls standing. Application was thereupon made to the building inspector of the Borough of East Rutherford for a permit authorizing repair of the building and for a certificate of occupancy authorizing the continued use of the building as an automobile repair garage. The building inspector denied these requests and prosecutors appealed to the Board of Adjustment. Under date of July 17th, 1947, the Board of Adjustment denied the relief sought by prosecutors advising them, in part, as follows:
"The Board of Adjustment has denied your application for a permit to continue your business at the above address. However, Mr. Hensch, Building Inspector, has been authorized to issue a permit to rebuild the garage for private use only."
It is not disputed that the premises in question are in a business zone and that under the borough's zoning ordinance, adopted in 1931, the operation of an automobile repair garage is permissible in such zone. However, the zoning ordinance provides that buildings in business zones must have a rear yard of at least 10% of the entire lot's depth. Prosecutors admit that their garage building does not have such rear yard but they contend that their garage structure was in existence, and in operation as an auto repair business, prior to the adoption of the ordinance in 1931 and that upon partial destruction, it may be repaired and its use continued under the provisions of R.S. 40:55-48. In answer the respondents urge (1) that the prosecutors did not, before the Board of Adjustment, assert the existence of a non-conforming use or structure and are, therefore, disqualified from advancing such contention before the court, and (2) that, in any event, the evidence does not establish that prosecutors' present building was in existence and in operation as a garage business at the time of the adoption of the ordinance in 1931.
The hearing before the Board of Adjustment was very informal; witnesses were not sworn; prosecutors made brief statements; and objecting neighbors were heard. One of these neighbors, who was called by respondents as a witness in the course of the taking of depositions for use before this court, testified that during the hearing before the Board of Adjustment the prosecutors stated that they had been operating their business for 24 years and wanted permission to continue their business. At the conclusion of its hearing the Board announced that its members would investigate the matter and render its determination. Members of the Board examined the premises and made certain interrogations. They were accompanied in their investigation by the respondent building inspector, who testified that he was aware of the fact that the prosecutors' garage building was in existence prior to the adoption of the ordinance in 1931 and had been used in the operation of a garage ...