Bianchi v. Morey
| Decision Date | 21 February 1942 |
| Docket Number | No. 218.,218. |
| Parties | BIANCHI v. MOREY et al. |
| Court | New Jersey Supreme Court |
Proceeding in the matter of the application by John B. Bianchi for a permit to erect a gasoline station on lots owned by him in the Town of Belleville wherein the application was denied and the applicant appealed to the Board of Adjustment which recommended a variance to the Board of Commissioners which decided adversely thereupon, whereupon applicant brought certiorari to review such decision.
Order in accordance with opinion.
January term, 1942, before BROGAN, C. J, and CASE and HEHER, JJ.
Simon L. Fisch and Paul Lustbader, both of Newark, for prosecutor.
Lawrence E. Keenan, of Belleville, for respondents.
According to the return (and particularly the resolution of the Board of Adjustment adopted June 26, 1941, and therein contained) to the writ of certiorari the prosecutor made application to the building inspector of the Town of Belleville for a permit to erect a gasoline station on lots owned by him and designated as Nos. 20, 23 and 25, Block 595, on the town tax map; the inspector refused to issue the permit for the reason that the premises were not in a zone where the erection of gasoline stations was permitted; the owner appealed to the Board of Adjustment which held a public hearing at which sworn testimony was taken on behalf of the applicant and of the opponents; the Board of Adjustment found that a denial of the permit would work an unnecessary hardship upon the applicant, that the contemplated use was particularly suitable to the property in question, would not be contrary to the public interest, would not materially increase traffic, fire, panic or other hazards, would not be injurious to the health, morals or general welfare and would observe the general spirit of the ordinance and accomplish substantial justice; the board accordingly recommended a variance to the Board of Commissioners; and the Board of Commissioners, having considered the recommendation, decided adversely thereon. The recommendation of the Board of Adjustment to the Board of Commissioners was within the authority of R.S. 40:55-39, subdivisions c and d, N.J.S.A. 40: 55-39, subds. c, d. Following the allowance of the writ depositions were taken on behalf of the prosecutor and of the respondents, respectively.
The property is in the neighborhood zoned against gasoline stations and is not within 150 feet of a zone where such use is permitted by the terms of the zoning ordinance. The immediate locality has been the subject of prior litigation decided adversely to the enforcement of the zoning restrictions. Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183, 147 A. 555; Bianchi v. Morey, 124 N.J.L. 258, 11 A.2d 405. The lands in suit are situated at the southwest corner of Belleville Avenue and Smallwood (formerly Pleasant) Avenue immediately adjacent to the lumber yard of the Bloomfield Lumber Co. (formerly Durkin Lumber Co., supra). Except for the present inclusion of a small lot immediately at the street corner the lands are the same as constituted the subject of the litigation in Bianchi v. Morey, supra....
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