Cook v. Bd. of Adjustment of City of Trenton

• Decision Date: 09 July 1937
• Docket Number: No. 207.,207.
• Parties: COOK v. BOARD OF ADJUSTMENT OF CITY OF TRENTON et al.
• Court: New Jersey Supreme Court

193 A. 191

118 N.J.Law. 272

COOK

v. BOARD OF ADJUSTMENT OF CITY OF TRENTON et al.

No. 207.

Supreme Court of New Jersey.

July 9, 1937.

Syllabus by the Court.

1. In cases under the Zoning Act of 1928 (P.L. p. 096, c. 274 [Comp.St.Supp.1930, § *136—4200j(l) et seq.]) and municipal ordinances, the board of adjustment should refuse to make an exception without satisfactory proof or certification of peculiar circumstances or special conditions, which would cause unnecessary hardships if the ordinances were literally enforced.

2. The decision of the board of adjustment after a hearing is presumably correct, and where it follows the ordinance, such decision will not be set aside on certiorarl unless it be shown to have been clearly against the great weight of evidence presented to the board.

Original proceeding by Henry Cook against Board of Adjustment of the City of Trenton and others for a writ of certiorari to review the decision of the Board of Adjustment of the City of Trenton refusing to make an exception to the local zoning restriction by permitting erection and operation of gasoline filling station.

Writ dismissed.

Argued May term, 1937, before BROGAN, C. J., and TRENCHARD and PARKER, JJ.

William H. Geraghty, of Trenton, for prosecutor. Sidney Goldmann, of Trenton, for defendants.

PARKER, Justice.

The prosecutor asks this court to overrule the decision of the Board of Adjustment refusing to make an exception to the local zoning restrictions, of a piece of land on the northwest corner of West Lafayette street and Peace street in Trenton, by permitting the erection and operation of a gasoline station. The tract has a frontage of 61 feet 6 inches on the westerly side of Peace Street, which is little more than an alley, being 25 feet wide, and of 71 feet 8 inches on the north side of Lafayette street, the roadway of which measures 26 feet 10 inches from curb to curb. The land south of Lafayette street is zoned as industrial, permitting gas stations there: on the north side it is zoned for "business," and as to this the ordinance forbids erection of any building intended to be used for: "(15) motor vehicle service station except as permitted in Section 9." The ordinance itself is not contained in the state of the case, and apparently was not introduced in evidence when the depositions were taken by permission contained in the allocatur; and we gather such extracts from it as are here quoted, from the brief of the prosecutor, which states that: "Section 9 allows the Board of Adjustment to 'permit in a business zone subject to the prohibition of section 6 the construction, extension, alteration or conversion of a building intended * * * for a motor vehicle station.'" The pertinent prohibition of section 6 barred, among other things, such a building within 200 feet of a church, measured along the street lines. Upon measurement it was found that the station projected in this case would be more than 200 feet from a church, hence the specific prohibition did not apply, and the Board of Adjustment therefore had power to permit the proposed building and station at the place now in question, and thereby make an exception to the general provisions of subsection 15 of the regulations for a business zone. The board, after a hearing on notice to neighboring property owners, refused to make the exception, and by a unanimous vote; and on a rehearing of the matter, again unanimously refused the permit. It is to this refusal that the present writ is directed; and the proposition of the prosecutor is, as it must be, that the refusal was an illegal abuse of discretion on the part of the board, resulting in a deprivation of the right of property.

We consider that this...