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Yates v. Board of Adjustment of Township of Franklin

Decided: August 18, 1970.

STEPHEN L. YATES AND PRISCILLA YATES, LEO FLYNN AND BARBARA FLYNN, ARTHUR BLOM AND JANET BLOM, MICHAEL LIVAK AND JOSEPHINE LIVAK, THORLIEF CHRISTENSEN AND MARION CHRISTENSEN, ANDREW CLIFFER AND JOAN CLIFFER AND PAUL MARTIAN AND KATHERINE MARTIAN, PLAINTIFFS,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, MAYOR AND COUNCIL OF THE TOWNSHIP OF FRANKLIN AND SOMERSET VOLUNTARY FIRE COMPANY NO. 1, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Meredith, J.c.c. (temporarily assigned).

Meredith

Plaintiffs seek a declaratory judgment that the action taken on behalf of the Township of Franklin in declaring that a voluntary fire company is a permitted use within the R-20 Residential zone of Franklin Township was illegal, void and of no effect.

In July of 1969, the defendant Somerset Voluntary Fire Company No. 1 (hereinafter referred to as Somerset) applied for a zoning and building permit to construct a two-story fire house on Lot 1 in Block 444 on Hollywood Avenue in the Township of Franklin. This lot was zoned as R-20 Residential. The zoning officer of Franklin Township denied the application by letter dated July 17, 1969, on the grounds that such a building was not a permitted use within the

R-20 Residential zone. Thereafter, on August 22, 1969, the defendant Somerset applied to the defendant Board of Adjustment of Franklin Township for a variance. On October 2, 1969, a public hearing was held before the defendant Board of Adjustment on the variance application.

On October 16, 1969, the defendant Board of Adjustment adopted a resolution recommending the aforesaid variance. The matter was then sent to the defendant Mayor and Council of Franklin Township for their final determination.

By letter addressed to the defendant Mayor and Council dated November 13, 1969, the Township Attorney expressed his opinion that the location of a voluntary fire company within an R-20 Residential zone was a permitted use. As a result, the defendant Mayor and Council refused to act on the recommendation of the defendant Board of Adjustment and took the position that the variance was unnecessary since the voluntary fire company qualified as a permitted use.

The plaintiffs, property owners within two hundred feet of the proposed structure, have brought this action to determine the validity of that decision under N.J.S.A. 40:55-30.

The applicable section of the Franklin Township Zoning Ordinance is Section IX, Paragraph 1, which provides that in an R-20 Residential zone, permitted uses include

A study of the New Jersey case law fails to disclose whether a voluntary fire company qualifies as a "municipal use."

The basic problem which now confronts this Court is one of interpretation and construction of the above quoted ordinance. Generally, questions of interpretation and construction of municipal ordinances are to be liberally construed in favor of the municipal authority. N.J. Const. , Art. IV, ยง VII, par. 11. See also Savonick v. Lawrence Tp. , 91 N.J. Super. 288, 294 (Law Div. 1966).

It is elementary that there is a definite need for fire protection in every municipality within this State. It cannot be questioned that a fire department performs a necessary and essential function. Its benefits redound to all members of the community. Municipalities which are in a position to afford a full-time fire department have ...


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