Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.
This appeal is taken from a judgment of the Law Division reversing the award of a zoning variance granted pursuant to N.J.S.A. 40:55-39(d).
On April 28, 1959 the Board of Adjustment of the City of Newark recommended to the municipal council that the defendant, Sidney Steiner, be granted permission to construct and operate a private automobile parking lot on a
now vacant lot located at 877-879 South 13th Street for the use of his customers and employees. Steiner operates a catering business located on a contiguous property, 709-715 Clinton Avenue. The business property occupies the northwest corner of Clinton Avenue and South 13th Street. Originally the business property was within a zoning district (second business district) which permitted this use. Since 1954, however, when that district was rezoned (third residential district), the use has been a nonconforming one.
The proposed parking lot, to be located at the rear of the catering establishment, has a 53-foot frontage on South 13th Street and a depth of 99 feet with its southern sideline extending along the catering service lot. The lot is situated within a first residential district which extends eastward five blocks; is bordered on the south (beginning at Clinton Avenue) by a third residential district, and on the west (beginning at South 14th Street) by a second residential district.
Section 36.3 of the zoning ordinance prescribes the use regulations for first residential districts. Briefly, it limits the use of property located therein to one-family dwellings, city and county parks and playgrounds, public and private schools, churches, publicly owned museums and libraries and accessory buildings including private garages. It also permits physicians and dentists to use their residences for office purposes. Off-street parking is specifically barred except as a facility for one-family dwellings. The pertinent parts of N.J.S.A. 40:55-39 by virtue of which the variance was awarded are as follows:
"The board of adjustment shall have the power 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.
No relief may be granted or action taken under the terms of this section unless such relief 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." (Emphasis added.)
The basis for the board's recommendation was that:
"(1) these premises are adjacent to a catering establishment located at 709-715 Clinton Avenue; (2) the area has no provision for off-street parking facilities; (3) the plans as submitted show fences, ornamental gates and shrubbery and would not detract from the esthetic appearance of the neighborhood; (4) the premises in question create conditions peculiar to this lot and if residential restrictions were enforced it would create a burden upon the property owner; (5) the proposed use would not depreciate property values nor be detrimental to the public health, welfare and safety nor would it adversely affect the intent and purpose of the Zoning Ordinance and the Master Plan."
The issue presented to the trial court was whether in light of the evidence the action of the board in awarding the variance represented a proper exercise of the authority granted to it by the cited statute. Specifically, the focal question was whether in the "particular case" a "special reason" for the variance had been proved. The trial court properly noted that where a variance is granted by municipal officials pursuant to statutory authority it is entitled to the customary judicial presumption of validity and that the court may not intervene to set such award aside except upon a showing that the action of the municipal officials was arbitrary, capricious or in manifest abuse of their discretionary authority. Grundlehner v. Dangler , 29 N.J. 256 (1959). The court made the equally pertinent observation that the applicant has the burden of setting before the local ...