Dubin v. Wich, 236.

• Decision Date: 11 July 1938
• Docket Number: No. 236.,236.
• Citation: 120 N.J.L. 469,200 A. 751
• Parties: DUBIN et al. v. WICH, Building Inspector, et al.
• Court: New Jersey Supreme Court

200 A. 751

120 N.J.L. 469

DUBIN et al.

v. WICH, Building Inspector, et al.

No. 236.

Supreme Court of New Jersey.

July 11, 1938.

Original certiorari proceeding by Peter Dubin and another against Jacob Wich, Building Inspector of the Township of Wayne, the Board of Adjustment of the Township of Wayne, and another to review the action of the Board of Adjustment of the Township of Wayne rejecting an application for a variation from the requirements of a municipal zoning ordinance.

Judgment of the Board of Adjustment affirmed.

Argued January term, 1938, before BODINE, HEHER, and PERSKIE, JJ.

Hunziker & Hunziker, of Paterson, for prosecutors. C. Alfred Wilson, of Mountain View (Norman R. Wynne, of Hoboken, of counsel), for defendants.

HEHER, Justice.

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The Board of Adjustment of the Township of Wayne, in the County of Passaic, rejected prosecutors' application for a variation from the requirements of the municipal zoning ordinance, adopted pursuant to the authority conferred by Chapter 274 of the Laws of 1928 (Pamph.L.1928, p. 696; Rev.Stat.1937, 40:55-30 et seq.), to permit the erection within the "A Residence Zone," delimited by the ordinance, of a refreshment stand for use in conjunction with a golf driving range, established some time before under a permit limited to three years, and a fruit and vegetable stand at a point nearby; and the question for decision is whether the action so taken was arbitrary and capricious, and therefore an indefensible invasion of the right of private property. We think not.

The locus does not abut a district wherein such structure or use is authorized by the zoning ordinance; and the test is whether the action assailed reasonably tends to subserve the policy underlying zoning, i. e., whether it is justified by one or more of the considerations outlined in section 5 of the Zoning Act, supra, R.S.1937, 40:55-32. So appraised, we deem it to be a valid exercise of power.

It is not asserted that the zoning ordinance itself, in respect of the lands embraced within the "A Residence Zone," transcends the authority delegated by the Legislature. There is no contention that the zoning regulations do not answer the requirement of section 5 of the statute, that they shall rest upon "a comprehensive plan," and be designed to "conserve" the "value of property" and to "encourage" the "most appropriate use of land throughout" the municipality.

In granting such an exception, the board of adjustment performs a quasi judicial function essentially discretionary in character; and it is the settled rule that the exercise of a discretionary authority will not be disturbed unless palpably abused, i. e., the action taken is arbitrary or capricious. The burden of proof of a justifiable variation rests upon the landowner. There is a presumption of a lawful exercise of power by the board of adjustment. Phillips Oil Co. v. Municipal Council of Clifton, 120 N.J.L. 13, 197 A. 730; Schnell v. Township Committee of Township of Ocean, 120 N.J.L. 194, 198 A. 759; Cook v. Board of Adjustment of Trenton, 118 N.J.L. 372, 193 A. 191; Feldman & Pivnick v. Board of Adjustment of East Orange, 142 A. 177, 6 N.J.Misc. 520.

The essential point made by the landowner is that the land is "not adapted to farming," and will yield no revenue if restricted in use as in the zoning ordinance laid down. The tract has a frontage of 614.5 feet on the Paterson-Hamburg Turnpike, a four lane concrete highway that is heavily traveled. Immediately to the west there is a roadside inn or tavern. Directly to the east there is a building owned by the local grange which serves as a community meeting place and dance hall. A public library adjoins this building on the east, and to the east of that there is a public school. A florist's shop and a real estate office abut the...