On appeal from the former Supreme Court, whose opinion is reported in 137 N.J.L. 475.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For reversal: None. The opinion of the court was delivered by Ackerson, J.
This is an appeal from a judgment of the former Supreme Court dismissing a writ of certiorari granted to review the refusal of the building inspector of the City of Garfield to issue a permit for the erection of a gasoline filling station on a vacant lot at the northwest corner of Midland Avenue and Outwater Lane in that city.
The lot in question was acquired by the plaintiff on October 8, 1945. It has a frontage of 109.22 feet on Midland Avenue and 75 feet on Outwater Lane. The former thoroughfare runs north and south and the latter east and west and both accommodate considerable traffic. A gasoline station presently occupies the northeast corner of the intersection and a gasoline station and storage garage are located on a lot approximately 100 feet square at the southeast corner. On the southwest corner there is a baseball field, which forms part of what is a tract of unimproved land which was dedicated for park purposes in 1939, and runs in a southerly direction for approximately 1400 feet, being bounded on the east by Midland Avenue and on the west by a railroad some 500 feet away.
In the area at the northwest corner of the aforesaid highways, and directly west of and adjoining plaintiff's lot, on Outwater Lane, there is a row of four dwellings, followed by a tract of vacant unimproved land running to the railroad, a distance of approximately 500 feet. To the north, and immediately adjoining
plaintiff's lot on Midland Avenue, is a row of five dwellings, followed by a sawdust mill and an ice cream plant, approximately 500 feet and 800 feet, respectively, from the intersection.
When the municipality was originally zoned in 1928, the entire westerly side of Midland Avenue, both north of Outwater Lane (including plaintiff's lot) and south of Outwater Lane (including the park), was zoned for industrial usage. The easterly side of Midland Avenue, south from Outwater Lane, an area of at least five blocks, was zoned as a Class "A" residence zone, with the exception of the corner lot which was zoned for business due to a then existing business use -- this being the tract on which the gasoline station and storage garage are now located. The land north of Outwater Lane on the east side of Midland Avenue is situated in the Township of Saddle River and was and is zoned for a business use.
By an amendatory ordinance adopted by the City of Garfield in 1939, the westerly side of Midland Avenue from Outwater Lane south for a distance of 2000 feet (including the aforesaid park) was rezoned from an industrial to a Class "A" residence zone. The northerly side of Outwater Lane from the aforesaid railroad easterly to Midland Avenue (approximately 500 feet), and thence northerly along the latter avenue for 179.22 feet (including plaintiff's vacant lot and two of the houses next adjoining) was rezoned from industrial to a Class "B" residence zone, the balance of Midland Avenue to the north (including the remaining three dwellings, sawdust mill and ice cream plant) remained unchanged and in an industrial zone.
Gasoline filling stations are not permitted in Class "B" residential zones and the building inspector's denial of plaintiff's application was for that reason. At this time (February 4, 1948) the local board of adjustment, created by the zoning ordinance, had but two of its full complement of five members, the terms of three having expired in 1945. There were no appointments to fill the vacancies, and, although plaintiff requested action, the vacancies were not filled until February 18, 1948 -- two days after the allowance of the present writ.
Under the Zoning Act (R.S. 40:55-1 et seq.) a building inspector, or similar administrative official, has no authority to grant exceptions to or variances from the literal enforcement of a zoning ordinance. In applying for the present writ and throughout the proceedings thereon the plaintiff has apparently acted upon two theories: (1) that because the board of adjustment lacked a quorum to hear her appeal and grant a variance, she could apply directly to the former Supreme Court for such a variance; (2) that the amendatory ordinance, in so far as it changes the area in which plaintiff's lot is located from an industrial to a residential zone, is an unreasonable and arbitrary exercise of the zoning power, and, therefore, unconstitutional.
The court below, apparently acting on the first theory above stated, considered the evidence and dismissed the writ on the ground that plaintiff had failed to prove that a literal enforcement of the ordinance would result in the "unnecessary hardship" required "to sustain the prosecutor's application for a variance or exception to the zoning ordinance". The ...