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Facher v. Bates

Decided: January 26, 1952.

IRVING FACHER AND MARVIN FACHER, PLAINTIFFS,
v.
C. ALFRED BATES, AS SECRETARY OF THE BOARD OF ADJUSTMENT, AND U. HARRY PERLMUTTER, JOSEPH C. CAPRIO, FREDERICK D. KAWTHRA, ANDREW J. NOLAN, AND JOHN B. ROONEY, AS MEMBERS AND CONSTITUTING THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, DEFENDANTS



Proceeding in lieu of prerogative writ.

Daniel J. Brennan, J.s.c.

Brennan

This is a proceeding in lieu of prerogative writ to review the determination of the Board of Adjustment of the City of Newark dismissing the appeal of the plaintiffs, who had requested the issuance of a permit by the defendant C. Alfred Bates, secretary of the board, who had denied the application.

It appears that on January 31, 1951, the plaintiffs purchased premises commonly known and designated as 585-591 Broadway, in the City of Newark, being a lot approximately 114 feet fronting on Broadway and having a depth of 100 feet on Romaine Place. These premises are within the Second Business District as established under the zoning ordinance of the City of Newark, originally adopted by the board of commissioners on January 8, 1930, and thereafter amended and supplemented by the board. The use regulations controlling Second Business Districts (section 7 of the zoning ordinance, as amended July 23, 1930, and May 15, 1940) do not prohibit the use of the premises as contemplated by the plaintiffs, i.e. , permission to cut curbs and use vacant land for the purpose of permitting customers of the proposed tenant to park on the premises while conducting business with the tenant.

There is posed here in limine the question of the jurisdiction of the board of adjustment. Counsel for the defendants supports such action of the defendants on the basis of section 1, sub-paragraph (aa) of the zoning ordinance of the City of Newark. The language of such subsection is reflected here literally, as follows:

"(aa) The term 'public garage' shall be construed to mean any building or premises in which a business, service or industry connected with motor vehicles is conducted or rendered, and shall include all premises used for motor vehicles either housed or unhoused, excepting automobile sales rooms conducted exclusively for the exhibition of not more than twenty vehicles."

The defendants contend that the action of the secretary of the board is reasonable, proper and legal; that the proposed use would constitute a nuisance and disturbance to the neighborhood, in that it would subject the neighborhood to unnecessary noise and annoyance, which is contrary to the zoning ordinance.

The premises here the subject matter of consideration are proposed to be used for the sale of ice cream and frozen custards. A permit had been granted by the Building Department of the City of Newark for the alteration of the structure now on the premises, plans in connection therewith having theretofore been approved by the building department.

This court has examined the pleadings filed, the testimony offered, including the matters contained in the pretrial order, and also the exhibits received in evidence. The briefs filed in behalf of the respective parties have also been considered, as well as the oral arguments of counsel appearing herein.

The court is at a loss to discover the attempted application of the subsection of the ordinance heretofore referred to as in any way a conference of jurisdiction on the board of adjustment. Manifestly it is intended to apply only to buildings on premises in which a business, service, or industry connected with motor vehicles is involved. To hold otherwise would be to do violence to our common language.

Counsel for the defendants attempts to further buttress his argument by the citation of Albright v. Johnson , 135 N.J.L. 70-73 (Sup. Ct. 1946); City of Cleveland Heights v. Glowe , 97 N.E. 2 d 226 (C.A. Ohio 1950); and Essex Investment Co. v. Board of Commissioners of Newark , 14 N.J. Misc. 181 (Sup. Ct. 1936). No one of these cases is apposite to the instant situation. In both the Albright and Essex Investment Co. cases, supra , the subject matter was a gas station in each instance. The jurisdiction of municipalities to control such enterprises is so well settled as to need no citations by the court ...


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