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P.D.M. Construction Corp. v. Welsh

Decided: November 5, 1965.

P.D.M. CONSTRUCTION CORPORATION, A CORPORATION OF NEW JERSEY, PLAINTIFF,
v.
HUGH W. WELSH, ACTING BUILDING INSPECTOR OF THE TOWN OF BELLEVILLE AND THE BOARD OF ADJUSTMENT OF THE TOWN OF BELLEVILLE, DEFENDANTS



Fusco, J.s.c.

Fusco

In this proceeding in lieu of prerogative writs, plaintiff P.D.M. Construction Corporation, a landowner, seeks a writ of mandamus directing the acting building inspector of the Town of Belleville to issue a building permit to erect a nursing home to accommodate approximately 39 patients on premises located in the C residence zone or, in the alternative, to review the action of the local board of adjustment in denying its application for a variance from the zoning ordinance.

The premises in question are known as 9-11 Forest Avenue and consist of a tract of now vacant land having an area of approximately 12,000 square feet, irregularly rectangular in shape. It has a frontage on Forest Avenue of 60 feet and on Highland Avenue of 56 feet 8 inches, and is approximately 200 feet in depth.

On May 5, 1965 plaintiff applied to the building inspector for a building permit, which permit was denied by letter of the same date on the ground that section 2 of the zoning ordinance did not permit nursing homes in a C residence zone or, for that matter, in any part of Belleville. On May 7 plaintiff appealed to the board of adjustment for an order reversing this decision or, in the alternative, for a variance from the provisions of section 2. The board of adjustment conducted a hearing on June 8 and thereafter, by resolution denying the relief prayed, declared that the construction of a nursing home is in violation of section 2 and, further, that a variance from the provisions of said ordinance should not issue for the following reasons:

"(a) Insufficient parking facilities will be provided for employees and/or visitors at the proposed site;

(b) Proposed construction radically changes the neighborhood which is generally composed of one-family and two-family residences; and

(c) Due to the square type construction proposed for the building, no allowance has been made for side yards or a front yard sufficient for outdoor, on-the-premise, ambulation of convalescent patients."

The zoning ordinance indicates that this tract lies within a residence zone. Although the board of adjustment concluded

that the neighborhood is generally composed of one-family and two-family residences, the zone is not restricted to such uses.

Section 2 of the zoning ordinance provides as follows:

"Section 2. In a residence zone, no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used, except for one or more of the following uses:

1. Dwellings or tenements, including the office of a physician, surgeon, dentist, lawyer, dressmaker, artist, or musician when situated in the same dwelling or apartment used by such physician, surgeon, dentist, lawyer, dressmaker, artist or musician as his private dwelling.

2. Boarding houses, including residences which are used for the purpose of daytime boarding of the type commonly called, 'child day ...


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