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Rain or Shine Box Lunch Co. v. Board of Adjustment

December 16, 1958

RAIN OR SHINE BOX LUNCH CO., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE CITY OF NEWARK AND NORMAN J. MULLER, DEFENDANTS-APPELLANTS



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

Conford

The Law Division entered judgment setting aside the denial of an application for a variance from the zoning ordinance of the City of Newark by the board of adjustment of that municipality and directing that the appropriate officers of the city issue a permit authorizing the construction upon and use of the land in question as a "parking station" in connection with the operation of plaintiff's business. The defendants, board of adjustment and zoning enforcement officer of the city, respectively, appeal.

The plaintiff operates a catering business from premises at 501-509 Broadway in the City of Newark. It prepares food for consumption off the premises, delivering its product by truck. Its building, situated on Broadway, with a frontage of about 125 feet, is owned by a corporation of related proprietorship which also owns the lots on Oraton Street and Chester Avenue which are the subject of this controversy. The building fronting on Broadway contains offices, facilities for preparation of food products and a garage used by plaintiff for storing its trucks, which number about 50. Plaintiff also has an auxiliary garage for trucks on the nearby corner of Broadway and Chester Avenue. An entrance into the main building by ramp from Broadway serves both for ingress and egress of plaintiff's trucks and for the vehicles of suppliers to plaintiff of materials essential to its business. This building is in a "second business" district, and plaintiff's operation apparently conforms thereto. A use map in evidence shows, however, that half or more of the Broadway frontage on both sides of the street in the near vicinity of plaintiff's plant is devoted to residential uses, although a witness for plaintiff made a general statement to the contrary.

Abutting a part of the rear line of plaintiff's building is an L-shaped tract of vacant land owned by plaintiff's related holding company, having a frontage of 150 feet on Oraton Street (running parallel with Broadway) and 25 feet on Chester Avenue. Chester Avenue intersects both Broadway and Oraton Street. This rear tract, for which a zoning

variance was sought by plaintiff, is in a "third residential" district, in which commercial parking is not a permitted use. There were two residences on the property when the plaintiff interests acquired it, but these were later torn down.

The formal application for a variance for the Oraton Street-Chester Avenue tract requested a permit for the "establishment of a truck parking station including parking of visitors and employees automobiles" (sic). The plaintiff's proofs and the explanation of its counsel before the board made it clear, however, that the tract was also intended to be used as an alternative or supplementary means of access for trucks to the Broadway building, in order to relieve the functional inadequacy of the Broadway ramp entrance, a situation which has been causing the backing up and double parking of its trucks along Broadway while awaiting loading or unloading in the building.

There is evidence indicative of the fact that Broadway, Oraton Street and Chester Avenue, in the vicinity of plaintiff's plant, have substantial daytime parking congestion. Broadway is a two-way county thoroughfare with considerable traffic. Oraton Street is a one-way street, the traffic running into Chester Avenue. The use map aforementioned indicates that Oraton Street on both sides is almost entirely residential in the block where the locus in quo is situated. This is also true of the side of Chester Avenue on which lies the frontage presently involved, as well as both sides of Chester Avenue south of the line of Oraton Street projected into the intersection with Chester Avenue. There is an auto repair shop, however, on the easterly side of Chester Avenue, near Oraton Street.

Before the board of adjustment the emphasis of plaintiff's case was placed upon a need for off-street parking space for its employees who drive to work (stated by one witness to number 60 and by another, 35) and business visitors. An attempt was made to show the public benefit which would accrue from taking these vehicles off the streets where they now park. However, plaintiff's food processing operations

commence at midnight and deliveries go out in the early morning. Operations close down at 2:00 P.M. It is not clear from the proofs to what extent neighborhood parking congestion concurs with the hours of plaintiff's operation. It may be inferred, however, that a moderate degree of neighborhood parking relief would result from the availability of the 30- to 36-car capacity which plaintiff's officer testified the rear lot would afford if the variance were granted, subject, however, to such parking of trucks on the lot and use of the area for truck ingress and egress to and from the building as was referred to above.

A written report was submitted to the board in connection with this matter by Edward L. Cyr, City of Newark engineer in charge of the bureau of traffic and signals. This recites, in part:

"A need for off-street parking is great in this area and the establishment of the proposed parking area will greatly relieve parking, not only on Chester Avenue and ...


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