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Brown Boveri Inc. v. Township Committee of Township of North Brunswick

Decided: June 1, 1978.

BROWN BOVERI, INC., A CORPORATION OF THE STATE OF NEW YORK; KURT ORBAN CO., INC., A CORPORATION OF THE STATE OF NEW YORK; E.D. GIBERSON & CO., INC., A CORPORATION OF THE STATE OF NEW YORK; GRAYBAR ELECTRIC CO., INC., A CORPORATION OF THE STATE OF NEW YORK; AND AVERY INTERNATIONAL, INC., A CORPORATION OF THE STATE OF CALIFORNIA, ALL DOING BUSINESS IN THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NORTH BRUNSWICK, NEIL COOKE, BUILDING INSPECTOR OF THE TOWNSHIP OF NORTH BRUNSWICK, BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BRUNSWICK, AND NICHOLAS PULEIO, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Middlesex County.

Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.

Larner

[160 NJSuper Page 181] Plaintiffs appeal from a judgment affirming the grant of use and bulk variances to defendant Nicholas Puleio which permit his to construct an automobile showroom for new car sales on a parcel of land located in an Industrial Zone of the Township of North Brunswick. Defendant purchased the 100' x 100' parcel several years prior to the variance application and when the present zoning ordinance was in effect. This ordinance incorporates this lot in an Industrial I District which does not permit a use for new car sales and showroom and requires a minimum area of two acres for industrial development

only. The ordinance does permit the proposed business use for new car sales in a Commercial C-2 district.

Puleio had also purchased at the same time a parcel of land approximately 200 feet away from the lot involved in this litigation, where he established a business for automobile repairs and sale of used cars.

In November 1975 he applied for a building permit for the construction of an automobile showroom on the 100' x 100' lot, which was denied by the zoning officer because such use was not a permitted one in the applicable zone and because of many deficiencies associated with the undersized lot. In view of this denial the owner filed an application for variances with the board of adjustment which in effect sought several bulk variances under N.J.S.A. 40:55-39(c) and a use variance for "special reasons" under N.J.S.A. 40:55-39(d).

After a hearing at which plaintiffs, as adjoining owners of industrial structures, voiced their objections, the board recommended approval of the applicant's request for a use variance and numerous bulk variances which would permit the construction of the automobile showroom in the Industrial Zone on an undersized lot and with physical features which violated several minimum standards of the local ordinance. The township committee thereafter granted the variances on the record, findings and recommendations presented by the board of adjustment.

The resolution of the board found that the negative criteria of the statute were met in that said variances will not be a substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

With respect to the "special reasons" within the ambit of section (d) of the statute it found "that the subject site is not suitable for industrial use by reason of its size" and that "the proposed use, under all circumstances, is the highest and best use and that the proposed use will not adversely affect nearby industrial properties."

It also appears from the resolution that among the persuasive factors for the grant of the "special reasons" use variance was the testimony of the applicant that he was required to purchase the subject site when he purchased the nearby property where he conducts his auto repair and used car business, and that he has been unable to purchase additional land surrounding the subject site.

With regard to both variances the board found that "applicant has demonstrated that a hardship and special reasons do exist as required by the statute."

Upon the grant of the variances by the township committee plaintiffs filed an action in lieu of prerogative writs which resulted in a judgment sustaining the variances granted by the municipality. The trial judge found that the discretionary action of the board of adjustment and township committee was supported by sufficient credible evidence both as to the (c) and (d) ...


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