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Gross v. Allan

Decided: October 17, 1955.

JULIA GROSS, ARTHUR GROSS AND MOE GROSS, PLAINTIFFS-APPELLANTS,
v.
DONALD ALLAN, TOWN CLERK OF THE TOWN OF KEARNY, CHARLES F. WARREN, BUILDING INSPECTOR, FRANK P. RIZZOLO, SUPERINTENDENT, FIRE PREVENTION BUREAU, TOWN COUNCIL OF THE TOWN OF KEARNY, AND THE TOWN OF KEARNY, A MUNICIPAL CORPORATION IN THE COUNTY OF HUDSON, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

The somewhat aberrant proceedings which culminated in this appeal had their inception in a complaint in lieu of prerogative writ demanding that the town authorities of Kearny issue to plaintiffs a license to sell motor vehicles on a plot upon which they conduct an automobile service station. The license was sought under the terms of a 1946 ordinance licensing and regulating "the business of selling or storing for sale any used or new motor vehicles on vacant lots or land." The complaint recites that the application for the license was in good order and that the town council rejected it and refused the license "despite the fact that said ordinance provides no standards authorizing the rejection of plaintiffs' application." Section 3 of the ordinance requires that an applicant for a license to conduct a business involving the storage or display for sale of two or more motor vehicles file an application with the superintendent of the fire prevention bureau and section 4 that the license shall not issue until after approval by the building inspector, the superintendent of the fire prevention bureau and the town council "after hearing thereon." The ordinance contains a number of provisions regulating the conduct of such businesses. One of the sections not here material was held invalid in Signore v. Rizzolo , 9 N.J. Super. 539 (Law Div. 1950), the court expressly passing the question as to validity of the provision governing procedure in issuance of licenses.

The answer set up the defense, among others which require no discussion, that the application had been disapproved because the conduct of such a business at plaintiffs' premises would offend the zoning ordinance of the town and that plaintiffs should first exhaust their remedies of appeal to the

board of adjustment for a variance. The first pretrial order entered fixed as issues the invalidity of the licensing ordinance in respect to standards for denial of a license, the applicability of the zoning ordinance to the proposed business, the prospective violation of the zoning ordinance as a defense to the demand for a license, whether plaintiffs had a prior nonconforming use, whether the zoning ordinance was arbitrary in reference to the proposed business, limitations and estoppel.

Thereafter, apparently with the consent of the trial court, the proceedings were held in abeyance pending an application by plaintiffs to the local board of adjustment "for a variance or such other permission from such zoning board as might be found necessary to enlarge the plaintiffs' right to store used motor vehicles on vacant land to specifically embrace the right to sell not more than 6 such new or used motor vehicles in conjunction with the present operation of the service station and the storage of motor vehicles on the premises." Thereafter such an application was made, plaintiffs reserving their right to establish any existing nonconforming use. Nothing appears as to whether the application was conceived of as being under subparagraph (c) rather than (d) of the jurisdictional section, N.J.S.A. 40:55-39, i.e. , whether it was for the grant of a variance, or for a recommendation thereof to the governing body. It will be noted that as a result of L. 1953, c. 288, the board had jurisdiction only under (d) in this situation. There was a hearing before the board wherein a number of neighboring property owners were heard in objection to the proposal and it was denied by the board. Thereupon an order amending the pretrial order was entered wherein the defendants waived the defense of failure of exhaustion of remedies, the occurrences before the zoning board were recited, the board was made a party and the issues were expanded as follows: (a) the alleged unconstitutionality of the revision of the zoning ordinance of December 9, 1952, as an arbitrary and unreasonable restriction of plaintiffs' property; (b) the applicability of the zoning ordinance, in terms; (c) nonconforming

use; and (d) illegality of the denial of the application by the zoning board. There was still another amendment of the pretrial order which need not be discussed.

At the trial of the cause one of the plaintiffs testified concerning the nature and history of the use of the property and a real estate expert testified on their behalf, in substance, that Belleville Turnpike, on which this property fronts, is "about the heaviest travelled" road in the West Hudson area; that the restriction of the right to sell motor vehicles on the subject property "would [not] alter the usual traffic situation in any way whatsoever"; and that the grant of the right would not increase traffic, affect the public safety or produce fire-hazards. The court found it unnecessary to pass upon the validity of the licensing ordinance and determined that the proposed use would violate the zoning ordinance and that that consideration warranted the denial of the license. It concluded there was a prior nonconforming use for storage but not for the sale of motor vehicles, that the action of the board of adjustment was unexceptionable and that the zoning ordinance did not have an unconstitutional effect as to the plaintiffs.

I.

We propose to pass questions which have occurred to us respecting the appropriateness, procedurally, of some of the issues which have been discussed in the briefs and at argument. We take it that both sides are interested in a comprehensive declaration on the merits as to the legal rights of plaintiffs to the claimed use of their property as against any of the assertions to the contrary by the Kearny authorities. Since the questions have been fully briefed and argued, it appears in the public interest that we accede.

First, as to the licensing ordinance. We conclude that the provisions governing the procedure for passing upon and issuing licenses are void for lack of appropriate standards. The law on the subject of standards in licensing ordinances ...


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