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Stolz v. Ellenstein

Decided: June 11, 1951.

HARRY A. STOLZ, ETC., PLAINTIFFS-RESPONDENTS,
v.
MEYER ELLENSTEIN, ETC., DEFENDANTS, AND MICHAEL FISHER AND HYMAN FISHER, INDIVIDUALLY AND AS CO-PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF FISHER BROTHERS CLEANERS, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Law Division.

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 Wachenfeld, J.

Wachenfeld

[7 NJ Page 293] The Fisher brothers own contiguous properties on Hillside Avenue and Watson Avenue, Newark. The Watson Avenue property is in a zone designated in the

city ordinance as a First Business District. The Hillside Avenue property is located in a Third Residence District and has at the rear five garages which adjoin the Watson Avenue property.

For several years the Fisher brothers have conducted on the Watson Avenue property a dry cleaning establishment in premises originally designed to accommodate a small neighborhood tailor shop. The business has expanded and the property is now being used as a central cleaning plant for six other tailor shops operated by them.

The pertinent section of the city's zoning ordinance provides that in a First Business District no building or premises shall be used for any industrial, manufacturing or commercial purpose above the ground story of the building, nor for any trade, industry or use prohibited in Second Business Districts. The ordinance further provides that in Second Business Districts there shall be no dry cleaning or dyeing establishment employing power machinery. The part of the ordinance pertinent to Third Residence Districts, in which the Hillside Avenue property is located, prohibits the use of buildings for any industrial, manufacturing or commercial purpose.

The business conducted by the Fisher brothers outgrew its present quarters and in 1948 they applied to the Board of Adjustment of Newark for permission to extend the dry cleaning plant to the second floor of the Watson Avenue building and to use one of the garages on the Hillside Avenue land as a boiler room for the plant. Several of the neighbors strenuously objected but the board of adjustment, after hearing the proponents and objectors, nevertheless recommended the requested variances be granted and its action was confirmed, after a further hearing, by two resolutions of the city commission.

The neighbors thereupon filed a complaint in lieu of certiorari in the Superior Court. The court found no hardship existed to justify the granting of the variances and set aside the recommendations of the board of adjustment and

the resolutions of the board of commissioners. From this judgment the Fisher brothers appealed to the Appellate Division and the cause has been certified here on our own motion.

At the time the application for a variance was made, R.S. 40:55-39, N.J.S.A., defining the powers of the Board of Adjustment, provided the Board might:

"c. Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of ...


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