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Grosso v. Board of Adjustment of Township of Millburn

Decided: September 10, 1948.

PATSY GROSSO, PROSECUTOR,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MILLBURN, IN THE COUNTY OF ESSEX, AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MILLBURN, DEFENDANTS



On certiorari.

For the prosecutor, Harry Silverstein.

For the defendants, Reynier J. Wortendyke, Jr.

Before Justices Bodine, Heher and Wachenfeld.

Heher

The opinion of the court was delivered by

HEHER, J. The defendant Board of Adjustment denied an application made by prosecutor for a variance from the terms of the local zoning regulations to permit the use of his lands numbered 16-18 Holmes Street in Millburn, situate in a single-family residence zone, as an automobile showroom

and service garage, and for leave to erect a suitable structure thereon.

The locus, recently acquired from the Delaware, Lackawanna and Western Railroad Company, is a rectangular plot fronting 57 feet on Holmes Street and extending back along the railroad right of way a distance of approximately 135 feet. Immediately adjoining the plot to the north, there is an embankment whereon is located the railroad's main line, the roadbed being about 15 feet above street grade.

The application for the variance was made on February 12th, 1947. On the ensuing March 7th, at the instance of the local planning board, the Board of Adjustment continued the hearing of the application to March 28th, following; and there were continuances from time to time, one at the instance of the applicant, until September 12th, 1947, when the application was denied. No hearing was afforded prosecutor. It is stipulated that "the matter was placed on the calendar" for this meeting "without notice" to prosecutor; that by an ordinance adopted on August 4th, 1947, the pre-existing "official map" of the township "was changed by showing an extension of Essex Street in a general easterly direction from its present terminus through and wholly occupying the lot or parcel of land" in question, "to afford a traffic by-pass of the intersection of Millburn Avenue and Main Street;" and that the denial of the application was based on this amendment of the official map which "placed the entire property * * * in the bed of the proposed street."

City or town planning is a constitutional concept. R.S. 40:55-1, et seq., has in view the physical development of the municipality "to conserve and promote the public health, safety, morals and general welfare." Mansfield & Swett, Inc., v. West Orange, 120 N.J.L. 145. Municipal planning, in a word, is the accommodation, through unity in construction, of the variant interests seeking expression in the local physical life to the interest of the community as a social unit. Planning is a science and an art concerned with land economics and land policies in terms of social and economic betterment. The control essential to planning is exercised through government ownership or regulation of the use of

the locus. But the governmental regulatory power has its limits. The case of Mansfield & Swett, Inc., v. West Orange, cited supra, offers an example of ...


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