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Dolan v. Decapua

Decided: May 14, 1951.

GEORGE A. DOLAN, ALICE DOLAN, ARCHIE H. ORMOND AND HELEN R. ORMOND, PLAINTIFFS,
v.
MICHAEL DECAPUA, AND HELEN DECAPUA, HIS WIFE, ROBERT T. WHITE, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, DEFENDANTS



Proceeding in lieu of prerogative writ.

Daniel J. Brennan, J.s.c.

Brennan

[13 NJSuper Page 502] This is a proceeding in lieu of prerogative writ to review the action of the defendant Robert T. White, Building Inspector of the City of East Orange, in issuing a permit for the erection of a new six-car garage at 81 Warrington Place, and the approval of the action by the defendant board of adjustment, the plaintiffs herein

asking judgment that the action be reversed and that the defendants DeCapua be required to remove their garage.

Counsel for the plaintiffs now concedes that this court has no authority to order the defendants or some of them to remove the garage which was built under the permit.

The plaintiffs George A. Dolan and his wife reside at 73 Warrington Place, and the plaintiffs Archie H. Ormond and his wife reside at 64 Warrington Place.

The zoning ordinance of the City of East Orange was originally adopted in 1921, and subsequently amended and supplemented. As adopted, amended and supplemented this ordinance was received in evidence and marked as Exhibit D-1 in these proceedings. The ordinance established, inter alia , an area designated as "Small Volume Residence Districts" and enumerated in said designation the use of buildings or premises within that district. The section applicable to the consideration of the matter sub judice reads as follows:

"Section 3. Small Volume Residence Districts.

(a) Use. No building or premises within any district shown as a small volume residence district on the Use and Volume District Map shall be used for other than one or more of the following specified uses:

(1) Dwellings for one family only."

In addition to providing for dwellings for one family only there is then a catalogue of other uses which need no reproduction here since the categories are in no way pertinent.

Subsection (9) of section 3 of the ordinance provides for accessory uses customary or incident to the above uses and this section is indicative of what is considered an accessory use within the purview of the ordinance in the following language:

"(9) Accessory uses, customary or incident to the above uses. An accessory use shall not include a building or use not located on the same lot with the building or use to which it is accessory. A private garage to be deemed an accessory use shall not provide storage for more than one motor vehicle for each 2,000 square ...


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