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Mullin and Mullin, Partners v. Zoning Board of Adjustment of Township of Millburn

Decided: October 26, 1964.

LOUIS V. MULLIN AND JOHN P. MULLIN, PARTNERS, DOING BUSINESS AS L. V. MULLIN & SON, PLAINTIFFS-RESPONDENTS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MILLBURN, ET AL., DEFENDANTS-APPELLANTS, AND CONGREGATION B'NAI ISRAEL OF MILLBURN, N.J., A RELIGIOUS CORPORATION, DEFENDANT-INTERVENOR-APPELLANT



Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

The consolidated appeals herein by defendants Board of Adjustment of the Township of Millburn and Ralph Trowbridge, building inspector of said township, and by defendant-intervenor Congregation B'Nai Israel of Millburn, involve the right of plaintiffs to establish a funeral home at certain premises known as 157-159 Millburn Avenue, Millburn, N.J.

Plaintiffs are contract purchasers of said premises which are located in a suburban-business "B" district under the Millburn zoning ordinance. Among the permitted uses in said district as set forth in the ordinance are:

"(a) * * *

(b) Hotel and public restaurant.

(c) Place of amusement or assembly or theatre, provided however, that no amusement park operated for profit, or circus or similar business shall be permitted in said district.

(d) Bank, trust company and business offices.

(e) Shop or store for conduct of retail business (excluding manufacturing or processing)."

Immediately after the foregoing itemization of permitted uses, is the following:

"Provided that in stores and shops no merchandise shall be carried or stored other than that intended to be sold at retail on the premises, and no goods shall be stored outside the building; and * * * no business or use shall be carried on or permitted in any building or structure or any premises which is injurious, obnoxious, offensive or dangerous, by reason of noise, smoke, odor, gas, dust or other objectionable or hazardous feature, or which, for any reason, would hinder, interfere with or detrimentally affect the use of the surrounding districts of the Township for the uses provided in this ordinance for those districts."

Plaintiffs, who are in the funeral business in Newark, N.J., were desirous of opening a suburban funeral home. To that end they entered into a contract to purchase the property in question. Application was made to the building inspector for a permit to erect a funeral home upon said premises, which application was denied, the reason given being that the proposed use was not a permitted use under the zoning ordinance. Thereupon plaintiffs filed an appeal with the board of adjustment from the decision of the building inspector, and also applied for a variance to permit plaintiffs to erect a funeral home on the premises.

At the hearing before the board of adjustment, while counsel for plaintiffs claimed that a permit should issue because a funeral home was a permitted use under the ordinance, the matter was presented to the board as an application for a use variance under N.J.S.A. 40:55-39(d) and for a side-yard variance under N.J.S.A. 40:55-39(c). A number of property owners, including defendant-intervenor, appeared at the hearing and objected to plaintiffs' application. Thereafter the board of ...


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