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Hrycenko v. Board of Adjustment

Decided: September 22, 1953.

JOSEPH HRYCENKO AND ANDREW WOJTOWICZ, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF ELIZABETH, WALTER F. FROMM, SUPERINTENDENT OF BUILDINGS, AND ALBERT J. WERNOCH, DEFENDANTS-RESPONDENTS



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant Fromm, Building Superintendent of the City of Elizabeth, issued a permit to defendant Wernoch for the construction at the rear of his lot of a building to be used as a welding shop. The premises are located in a Business "C" District, as established by the municipal zoning ordinance. Plaintiffs, whose premises adjoin Wernoch's, protested and asked Fromm to revoke the permit. When he refused, they appealed to the board of adjustment. After public hearing the board denied the appeal but imposed the following restrictions:

"No work to be done in the shop before 7 A.M. and no work to be done after 6 P.M. No work to be done on the street."

Plaintiffs then filed their complaint, the first count being in lieu of prerogative writ and the second seeking an injunction restraining Wernoch from using the premises in such manner as to constitute a nuisance, enjoining him from operating the shop before 7 A.M. or after 6 P.M., and enjoining any work upon the public right-of-way or street. The first count, relating to the validity of the building permit, was tried and decided adversely to plaintiffs. At a later date there was a hearing on the second count, and this likewise was decided adversely to plaintiffs. Judgment was then entered in favor of defendants; it specially recites that the court had found that the second count did not apply to the defendants board of adjustment and Fromm, and that judgment was to be entered by consent in their favor on that count. Plaintiffs' appeal raises three points:

(1) Was the building permit properly issued?

(2) Should the permit have been revoked?

(3) Did Wernoch's use of the premises constitute a nuisance that should have been enjoined by the trial court?

In support of their first point plaintiffs claim that the new structure violates the ordinance in four particulars, but one of these was abandoned on the argument. They first claim that the building constitutes a second principal structure on the lot in question, in violation of section 2 of the ordinance which reads:

"For the purpose of this ordinance, a 'lot' is any parcel of ground under one ownership, description of which is filed with the building inspector as provided in Section 24 (b) and which is occupied by one principal building and its accessories. * * *"

Section 2 is entitled "Definitions" and the quoted text merely defines a lot. The ordinance nowhere states that a lot in a Business "C" District may have only one principal building. Zoning limitations on the use of private property must be clearly and expressly imposed, and should not be inferred. 6 McQuillin, Municipal Corporations (3 rd ed. 1949), ยง 20.51, p. 127. The Elizabeth ordinance does not prohibit the present arrangement.

Plaintiffs next argue that the structure violates section 7(b) of the ordinance which provides that in a Business "C" District a rear yard 12 feet in depth shall be maintained whenever the ground story is used for dwelling purposes. They claim that toilet rooms projecting from the rear of the dwelling house located at the front of the lot shortened the yard between the house and the new structure to less than 12 feet. It appears from defendants' briefs that these projections were removed prior to the trial, and this was admitted by plaintiffs' counsel at the argument. Disregarding that fact, there is nothing in the record to show that the toilet rooms were less than 12 feet from the new building. The rather brief testimony on this point referred to a 15-foot depth; counsel and witness were both apparently confused because the 15-foot requirement relates to residence districts. Plaintiffs' exhibit, a 1948 ...


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