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Barbarisi v. Board of Adjustment

Decided: February 23, 1954.

ANTHONY BARBARISI, ALFONSO MOSCHETTI, CARMELA LEPORE AND ROSE DE GISE, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT, BOARD OF PUBLIC WORKS, WILLIAM BYRNES, INSPECTOR OF BUILDINGS, LESTER F. TITUS, MAYOR OF THE CITY OF PATERSON, AND JOSEPH VIGNALI, DEFENDANTS-RESPONDENTS



Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

The board of adjustment of the City of Paterson recommended to the board of public works, the governing body of the city, that a variance be granted to respondent Joseph Vignali, from the zoning ordinance, to permit certain construction on property owned by him. The board of public works approved the recommendation and appellants attacked the resolution by this proceeding in lieu of certiorari. The Law Division sustained the action of the governing body and this appeal followed.

The recommendation for a variance was made under N.J.S.A. 40:55-39(d) which empowers the board of adjustment to:

"d. Recommend in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. If such recommendation shall be approved by the governing body or board of public works then the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use."

In defining the authority committed to the board by this enactment, the Supreme Court said:

"* * * The amendatory acts indicate a legislative intent to withdraw from R.S. 40:55-39d, N.J.S.A. , the application of the the requirement for proof of 'unnecessary hardship' and to substitute therefor discretionary authority to grant a variance 'in particular

cases and for special reasons.' This is indicated by the fact that in subsection c (as amended) the Legislature retained the words 'exceptional and undue hardship' where the board of adjustment is empowered to authorize a variance, but in subsection d (which formerly contained no legislative expression of the basis necessary for the board's recommendation of variance to the governing body) the Legislature inserted the words 'in particular cases and for special reasons.' It is settled that statutes should be accorded that construction which will give effect to every word expressed by the Legislature therein. This requires construction of R.S. 40:55-39, as amended, N.J.S.A. supra , to mean that where the board of adjustment may authorize a variance there must be proof of 'exceptional and undue hardship,' but where it may recommend a variance to the governing body of the municipality it may do so, in particular cases, 'for special reasons' which may include, but do not necessarily require, proof of unnecessary hardship as a special reason warranting a variance." Monmouth Lumber Co. v. Ocean Township , 9 N.J. 64, 77 (1952)

Thus, in order to recommend a variance to the governing body the board of adjustment must find: (1) "special reasons" which are not inconsistent with the basic purposes of zoning as set forth in R.S. 40:55-32, and (2) that the variance can be granted "Without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55-39; Ward v. Scott , 11 N.J. 117, 126 (1952).

In the present case Vignali acquired the property in 1935, through foreclosure of a mortgage which he held. It is known as 285-291 Fifth Avenue, Paterson, and is on the corner of 19th Street. The lot is 100 feet by 100 feet and located in the residence "C" district under the zoning ordinance.

Prior to and at the time of the adoption of the zoning ordinance, an automobile repair business was being conducted in the building on the premises. The parties concede that this was a valid non-conforming use.

Later in 1935, apparently at the time of the foreclosure, this use ceased and Vignali let the premises, except for a small portion thereof, for a rug-cleaning business. The small portion ...


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