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Kempner v. Township of Edison

Decided: March 2, 1959.

BENJAMIN KEMPNER, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF EDISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF EDISON, THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, AND GEORGE H. THOMPSON, BUILDING INSPECTOR OF THE TOWNSHIP OF EDISON, DEFENDANTS-RESPONDENTS



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

Haneman

Plaintiff appeals from a judgment of the Law Division dismissing his complaint in lieu of prerogative writs.

Plaintiff is the owner of lots 11 through 16, inclusive, in Block 663 as shown on the zoning map of the Township of Edison. This land, under the zoning ordinance, is located in residence zone B. Permitted uses are those permitted in residence zone AA, i.e. , single family dwellings, places of worship, public parks, schools, country clubs and non-commercial agriculture or horticulture uses, plus multiple family dwellings, rooming houses, boarding houses, or tourist homes.

On May 27, 1957 plaintiff applied to the building inspector of the township for a permit to erect a building for use as a restaurant and cocktail lounge. The dimensions of the

proposed building were approximately 75 x 100 feet; its seating capacity approximately 125 to 150 persons. Upon denial of this application, plaintiff appealed to the board of adjustment seeking a use variance under N.J.S.A. 40:55-39, subd. d. No stenographic record was made of the proceedings before the board of adjustment, nor were any minutes of the proceedings kept by said board. After the hearing the board of adjustment adopted a resolution which reads, in part:

"* * * a public discussion was held and several of the affected property owners appeared and objected and others appeared in favor of granting a variance.

Whereas, the appellant appeared and presented testimony which indicates that because of unusual circumstances he is compelled to vacate his present place of business, conditions beyond his control; and

Whereas, the appellant further testified that he is the owner of said property and to deny the appeal would result in peculiar and exceptional practical and financial difficulties to and undue hardship upon the appellant; and

Whereas, the Board of Adjustment has inspected the premises and are familiar with the location; and

Whereas, the Board is inclined to the belief that this property is not best suited for residential purposes, being located adjacent to a railroad; and

Whereas, the Board is further inclined to believe that a variance can be granted without detriment to the public good and without impairing the intent of the Zone Plan of the Township of Edison; and

Whereas, it is the opinion of the Board of Adjustment that the proposed construction and use will not be a detriment to the value of ...


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