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Ascione v. City of Union City

Decided: December 14, 1962.


Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


This is a zoning case attacking the validity of a municipal ordinance to the extent of its application to plaintiffs' property. The defendants City of Union City (hereafter city) and the Board of Adjustment thereof (hereafter board) appeal from the final judgment of the Superior Court, Law Division, Hudson County, rendered in favor of plaintiffs.

In 1930 the city adopted a zoning ordinance under which the territorial limits of the municipality were zoned into numerous use districts designated respectively as residential, business and industrial. Their respective boundaries were established according to and as shown by a building zone map of the city. The map was incorporated by reference and made a part of the zoning ordinance.

The subject property is a one-story brick building (approximately 31 x 80.06 feet) located at No. 1700 Manhattan Avenue, and identified as Lot 4, Block 179 on the Union City Tax Map. It is situated within a district that was zoned residential. On the effective date of the ordinance said property was used as a public garage for parking and storage of motor vehicles. In 1935-36 the premises were rented to an electrical contractor. From 1946 to 1959 they were occupied by the General Collision Company, engaged in automobile

body and fender work -- substantially the same use as that intended by plaintiffs. Between January 1960 and December 1960 the property was utilized as a machine shop, after which time it remained vacant. In March 1961 plaintiff Elizabeth Ascione, the then owner, entered into a contract for its sale to plaintiffs Oreste Casagrande and Pat Caporino. Pending settlement the purchasers, with the consent of the seller, applied for and were denied a certificate of occupancy for the operation of an automobile repair and paint shop business at the location in question.

Plaintiffs thereupon appealed to the local board for a variance averring that

"the premises at the present time is a machine shop which has occupied same for a number of years, they having theretofore been occupied as an automobile repair and body and fender shop for many years. Applicants propose to use said premises as an automobile repair and body and fender shop, as heretofore,"

and petitioned for a recommendation that a variance be granted "pursuant to R.S. 40:55-39(d) with respect to said Lot 4 in Block 179." After a hearing the board, by its order dated May 8, 1961, denied plaintiffs' application; its findings of fact and conclusion were set forth in a single paragraph of the order which reads:

"And it further appearing that due notice has been given to all property owners within 200 feet of the subject premises, and proof of service of said notice having been filed with the Board, and the testimony of witnesses for the Petitioners and objectors having been heard and considered, and the Board having made an 'on site' inspection of the premises in question, and the surrounding neighborhood, and the Board being of unanimous opinion that the variance from the terms of the Zoning Ordinance of the City of Union City should not be made for the reason that no hardship was shown warranting a variance from a residential use zone to permit an industrial use of said premises and such variance would be contrary to the public interest and in violation of the spirit of such ordinance." (Emphasis supplied. Note, proof of hardship is not a sine qua non under N.J.S.A. 49:55-39(d). Rain or Shine Box Lunch Co. v. Newark Bd. of Adjustment , 53 N.J. Super. 252, 262 (App. Div. 1958); Ward v. Scott , 11 N.J. 117, 121-122 (1952).)

Then followed plaintiffs' action in lieu of prerogative writ initiated in the Superior Court, Law Division. The complaint, inter alia , alleged that plaintiffs had exhausted their administrative remedies and demanded "That such portion of said ordinance, insofar as it affects the property of the plaintiff [ sic ], be set aside," and that the officers of the city be required to issue the requested certificate of occupancy. The substance of plaintiffs' arguments before the trial court was, as it is here on appeal, that the refusal of the board to issue the requested variance was tantamount to the taking of property without due process of law; the local zoning ordinance was unreasonable, discriminatory, arbitrary and vexatious; and they have been unlawfully deprived of their constitutional rights contrary to Article I, paragraph 1 of the 1947 Constitution of New Jersey and the Fourteenth Amendment of the United States Constitution.

The trial, which commenced November 13, 1961, consumed two and a half days. The undisputed facts were stipulated, 15 exhibits were admitted in evidence, testimony was elicited from eight witnesses, counsel submitted briefs, and the respective legal contentions were argued. Defendants' motions for judgment of dismissal were denied and, on December 1, 1961, a final judgment for plaintiffs was entered (a) vacating the action of the Board of Adjustment on May 8, 1961, (b) setting aside the zoning ordinance adopted February 11, 1930 "insofar as the same pertains to Lot 4 in Block 179, as shown on Union City Tax Map," and (c) directing the proper city officials to issue a certificate of occupancy to the plaintiffs-purchasers on condition that they "construct a booth to do the painting and a blower and stack to remove and diffuse all fumes." It is from this judgment that defendants appeal, asserting several grounds in support thereof. Those essential for review and the resolution of the basic issues here involved are (a) the trial court erred in holding that the zoning ordinance was arbitrary, capricious and unreasonable as it applies to plaintiffs' property, (b) its judgment was based on matters

aliunde the record, and (c) evidence was improperly admitted.

Plaintiffs did not challenge the zoning ordinance in its entirety. Their pro tanto attack was directed to the ab initio invalidity of the ordinance as it related to the subject property and, in that respect, they maintained that the ordinance was ultra vires and void. It was not only appropriate but essential under the circumstances that plaintiffs first apply for a variance before the local agency of the municipality and thereby exhaust their available administrative remedy. Universal Holding Co. v. North Bergen Twp. , 55 N.J. Super. 103, 113 (App. Div. 1959); Conlon v. Bd. of Public Works, Paterson , 11 N.J. 363, 370 (1953); Kozesnik v. Montgomery Twp. , 24 N.J. 154, 183 (1957). Plaintiffs were obliged to proffer original proofs to establish their contentions with respect to the issues in such litigation. Id. , at p. 187.

It is uncontroverted that the operation of the property in dispute constituted a nonconforming use at the time the ordinance was adopted, it has continued as an industrial use with various types of commercial enterprises (including 13 years as a body and fender business), and the property at no time has been utilized for residential purposes. Plaintiffs do not claim that their intended occupational activity can be supported as a valid nonconforming use. The fact, however, "that the proposed variance use is not within the scope of the nonconforming use existing when the ordinance was adopted will not preclude a grant of relief by the board of adjustment if otherwise warranted on the facts." Universal Holding Co. v. North Bergen Twp., supra , 55 N.J. Super. , at p. 113; Grundlehner v. Dangler , 29 N.J. 256 (1959).

The trial judge personally inspected the subject property and the surrounding neighborhood, without objection and in the presence of counsel for each of the parties litigant. In rendering his decision, after commenting upon the testimony and the facts which were presented, the following observation was made:

"In the immediate area of plaintiffs' property, that is, Manhattan Avenue between 16th and 18th Streets, the one factor that impresses me most is the predominance of industrial and business uses and non-conforming uses. This becomes more apparent upon inspection."

As the presiding judge he had the right to view the local scene "in order to better understand the evidence in the case," but "he may not go outside of the record and base his ruling on his personal knowledge or facts ascertained from a personal inspection." See opinion of this court in Peoples Trust Co., etc. v. Hasbrouck Heights, etc. , 60 N.J. Super. 569, 576 (App. Div. 1959), and the authorities therein cited.

We turn now to the proofs in the record, the analysis of which accentuates three predominant elements, (1) the character of the neighborhood, (2) the defects in the formulation of the zoning ordinance, and (3) the absence of a comprehensive zoning plan.


Plaintiffs' brick building (Lot 4, Block 179) is situate on the east side of Manhattan Avenue between Mountain Road (a continuation of 16th Street) and 18th Street. Immediately adjacent to it is a large industrial factory known as the Cranwell Building (Lots 26, 27, 28 and 29, Block 179) consisting of three contiguous six-story buildings fronting on Manhattan Avenue, and extending for approximately 212.5 feet to the northeast corner of that avenue and Mountain Road. Adjoining plaintiffs' property toward 18th Street, and fronting Manhattan Avenue for a distance of 105 feet to the southeast corner of 18th Street, is the property of H. Betti & Sons, Inc. (hereafter Betti), known as No. 1702-08 Manhattan Avenue (Lots 1, 2 and 3, Block 179). The improvements on the Betti property include (a) one-story factory buildings at the 18th Street ...

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