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Nalitt v. Township of Millburn

Decided: March 16, 1961.

SANFORD NALITT, PLAINTIFF,
v.
THE TOWNSHIP OF MILLBURN IN THE COUNTY OF ESSEX, A MUNICIPAL CORPORATION, AND RALPH TROWBRIDGE, BUILDING INSPECTOR OF SAID TOWNSHIP, DEFENDANTS



Waugh, A.j.s.c.

Waugh

This action was instituted by the plaintiffs, in lieu of prerogative writ, for the purpose of reviewing the legality of a resolution of the township committee of the defendant township which rejected a recommendation of the board of adjustment that a building permit be granted to the plaintiff to erect a bowling alley. The proposed building was to be erected in an industrial zone in the Township of Millburn at a point adjacent to the Springfield Township line. After consideration of the record, I conclude that judgment must be entered in favor of the plaintiff.

The facts disclose that on August 24, 1960 plaintiff Nalitt filed a complaint with the Clerk of the Superior Court seeking a declaratory judgment of his entitlement to erect a bowling alley, setting aside the aforementioned resolution of the township committee, and requiring the defendant building inspector to issue a building permit.

Prior to the initial application to the building inspector, plaintiff contracted for the purchase of a certain tract of land located in the township consisting of four acres, fronting in part on Springfield Avenue, a main traffic artery running through the township in, generally, an eastwest direction. The contract contained the usual contingency clause making the consummation thereof dependent upon the issuance, in favor of the plaintiff, of a building permit authorizing the construction of a building to be used for bowling alleys.

On February 24, 1960 application was made to defendant Trowbridge for a building permit, and attached thereto was a copy of the plans showing a contemplated building containing 64 alleys. The application was denied as being in violation of article IV, section 15 of the township's zoning ordinance.

Subsequent to the action of the building inspector, plaintiff filed an appeal with the township board of adjustment. After a full public hearing, the board of adjustment on May 10, 1960 recommended to the township committee

that the application be granted on condition that the number of alleys be reduced to 48, and that an amendment be made to the plans to include provision for a minimum of 336 parking spaces, thus requiring an increase of 20 spaces over the number submitted with the plans. Included also in the recommendation was the specification that the proposed establishment operate a maximum of 16 hours daily, with the closing hour not later than 2 A.M.

In support of this recommendation, certain findings of fact were made and submitted, the most pertinent of which are set forth as follows:

1. The proposed use involved an area of approximately four acres of which approximately one acre or 25% of the total site area, would be occupied by the proposed building. This ratio exceeded that authorized by the ordinance by 5%.

2. The site fronts on Springfield Avenue, a main highway.

3. There is no public transportation to the proposed building site.

4. The building would be of fireproof construction and the standards pertaining to set-backs, noise, lighting and landscaping apparently would be complied with.

5. The tract is located in an industrial zone bounded on the south by undeveloped land; to the west beyond the industrial zone is a business zone in which there are several residences, but which are some 650 feet from the proposed site; to the east, the distance to the nearest residential property line is approximately 1,020 feet, and from the nearest corner of the proposed building to the same point a distance of approximately 1,150 feet; to the north the distance from the nearest corner of the proposed building to the nearest residential property line being approximately 1,130 feet.

After further reciting the possibility that highway construction might reduce some of the area devoted to off-street parking, and that the plaintiff held an option for the purchase of additional land in this event, the board, conditioning its recommendation on the modifications outlined heretofore, concluded that the application

"may be granted without detriment to the public good and it will not substantially impair the intent and purpose of the zone plan and zoning ordinance."

Upon notification of this conditional recommendation the plaintiff consented to the conditions set forth therein, a consent which he has restated in his pleadings.

On August 15, 1960 the township committee considered the matter and rejected the recommendation of the board of adjustment, concluding that

"* * * because of the inadequacy of the parking facilities even as increased by the Board of Adjustment, and the difficulty in furnishing relatively prompt police and fire protection to this site, and the traffic congestions and resulting noise and disturbance that will undoubtedly emanate from this use, that it [the application] should not be granted."

The area in which the plaintiff proposes to erect the structure under consideration is one set aside by the zoning ordinance for industrial purposes; and there is no doubt that the ordinance ...


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