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Zahn v. Board of Adjustment

Decided: June 24, 1957.

IRVING ZAHN AND IVY HILL PARK, SECTION THREE, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, AND WILLIAM FIVERSON, ZONING OFFICER, DEFENDANTS-RESPONDENTS



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

Freund

Plaintiffs instituted this action seeking an adjudication that the establishment by a commercial cleaner of a depot in the basement of a multi-family house, where clothing to be cleaned and pressed off-the-premises may be deposited, does not constitute doing business under the terms of the zoning ordinance of the City of Newark, or, if it be deemed doing business, for a reversal of the defendant board of adjustment's refusal to grant a variance for its use.

Plaintiff Ivy Hill Park, Section Three, Inc., leased to the plaintiff Irving Zahn a room in the basement of its apartment building to be used as a depot for the deposit and pick-up of various articles of clothing to be cleaned and pressed. The building, a 420-family apartment house, is one of a group of five equally sized buildings located at Ivy Hill Park, in a Fourth Residence District of the City of Newark. Zahn conducts an off-premises dry-cleaning business and intends periodically to pick up the articles of clothing left by the tenants in the basement room and after cleaning and pressing them off the premises, to deliver them directly to the tenants. While no sign outside

the building advertises this service, there is a small sign inside indicating its location. The trial court personally inspected the basement room and found that it contained a counter, some shelves, and three pipe racks with clothes hangers. At the time of this inspection, the plaintiff Zahn and a female helper were in the room. The record does not disclose, however, whether this helper was regularly in attendance.

Plaintiffs were informed by the zoning enforcement office that the use they proposed to make of the basement room constituted a business and hence was in violation of the zoning ordinance. They applied for a variance, and after a hearing their application was denied. The present action was therefore initiated, and from a judgment of involuntary dismissal in the trial court plaintiffs appeal upon the following grounds: that the maintenance of a garment pick-up depot for the exclusive use of the apartment tenants does not constitute doing business within the intendment of the zoning ordinance; that the operation of this service is but incidental and accessory to the operation of a large residential apartment development; and that if the proposed service is in violation of the zoning ordinance a variance to permit its operation should be granted, and the refusal of the board to grant one was unreasonable, arbitrary and capricious.

Section 36.5 of the local zoning ordinance, governing permissible uses in a Third Residence District, provides inter alia:

"2. Use Regulations. A building or premises shall be used only for the following purposes: * * *

b. Multiple Dwelling. * * *

g. Accessory buildings including private garages. * * *"

Section 36.6, governing such uses in a Fourth Residence District, permits "any use permitted in the Third Residence District." Both of these sections, however, are silent as to uses incidental or accessorial to the use of a building designated as a "multiple dwelling."

Plaintiffs' principal argument on this appeal is that the service would be a convenience to the tenants. Without such a depot, they urge, tenants will be plagued by solicitation from local cleaners and considerable congestion results in the elevators and corridors when their garments are picked up and delivered. It is therefore contended that the service is merely incidental to the primary residential function of the building and not primarily commercial in nature. Although it cannot be denied that the convenience of leaving clothing in a basement depot out-weighs that of delivering it to a distant cleaner, such an argument might well defeat the very thesis of zoning, which is that of separation of business and industry from the home. Indeed, it is always more convenient for the customer that the business be close-by. However, sound social, economic and governmental policy dictates a separation, wherever ...


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