Campbell v. Bd. of Adjustment of Borough of S. Plainfield
| Decision Date | 27 April 1937 |
| Docket Number | No. 251.,251. |
| Citation | 191 A. 742 |
| Parties | CAMPBELL et al. v. BOARD OF ADJUSTMENT OF BOROUGH OF SOUTH PLAINFIELD et al. |
| Court | New Jersey Supreme Court |
Certiorari proceeding by William K. Campbell and another against the Board of Adjustment of the Borough of South Plainfield and others, to review a decision and order denying prosecutors a certificate of occupancy to carry on a gasoline and service station in South Plainfield.
Decision and order set aside.
Argued January term, 1937, before PARKER, LLOYD, and DONGES, JJ.
Edmund A. Hayes, of New Brunswick, for prosecutors. John J. Rafferty, of New Brunswick, for respondents.
This is a zoning case in which the prosecutor was denied a certificate of occupancy to carry on a gasoline and service station in South Plainfield. A zoning ordinance was adopted in March, 1932, and the prosecutor's property was placed in a residential zone. At that time he was conducting the gas station and road stand in a frame building erected in 1931, and was given a non-conforming certificate. This use he continued until November. In May, 1933, the premises were leased to another who carried on the same business until October, 1933, when the prosecutor resumed the business for a month. Since that time, the property has remained idle due to the inability of the prosecutor to obtain a tenant.
The act of 1928, c 274, p. 703, provides in section 11 (Comp.St.Supp.1930, § *136— 4200J(11), that "any non-conforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied, and any such structure may be restored or repaired in the event of partial destruction thereof."
We think the prosecutors were entitled to their certificate. The statute preserves such rights of use as they existed at the time of the adoption of the ordinance. There was certainly a nonconforming use at that time in this case and the property had at no time been changed to a conforming use. The prosecutors testified that an intended nonconforming use was never abandoned and certainly the inability to get a tenant or temporary inability to carry on the business can hardly be said to change its character.
The facts are much like those in Provident Institution for Savings v. Castles, 168 A. 169, 11 N.J.Misc. 773.
Prosecutors' application should have been granted and, if necessary, mandamus may be applied for and allowed to the end that their rights may be obtained. The decision and...
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State v. Accera
...& A.1948); National Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 42 A.2d 753 (Sup.Ct.1945); Campbell v. Board of Adjustment of Borough of South Plainfield, 118 N.J.L. 116, 191 A. 742 (Sup.Ct.1937); Walton v. Stephens, 124 N.J.L. 216, 11 A.2d 364 (Sup.Ct.1940); Provident Institution for Sav......
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Nat'l Lumber Prod.s Co. v. Ponzio
...to the subsequent increase and enlargement thereof, negatives the contention to the contrary. Cf. Campbell v. Board of Adjustment of Borough of South Plainfield, 118 N.J.L. 116, 191 A. 742. 2. As to variance from strict enforcement of the ordinance on the ground of undue hardship. The ‘esse......
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Grimley v. Village of Ridgewood
...116 A.2d 203 (App.Div.1955); Haulenbeek v. Borough of Allenhurst, 136 N.J.L. 557, 57 A.2d 52 (E. & A.1948); Campbell v. Board of Adjustment, 118 N.J.L. 116, 191 A. 742 (Sup.Ct.1937). Moreover, although a variance not utilized confers no vested or absolute right in the property owner, the fa......
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McKenna v. New Jersey Highway Authority
...occurred a writ of Mandamus would issue to ensure complete relief to the plaintiff. See Campbell v. Board of Adjustment of Borough of South Plainfield, 118 N.J.L. 116, 117, 191 A. 742 (Sup.Ct.1937) ; Gabrielson v. Borough of Glen Ridge, 176 A. 676, 13 N.J.Misc. 142, 148 (Sup.Ct.1935). Cf. P......