Fonda v. O'Donohue, 288.

• Decision Date: 12 November 1932
• Docket Number: No. 288.,288.
• Citation: 163 A. 2
• Parties: FONDA et al. v. O'DONOHUE et al.
• Court: New Jersey Supreme Court

163 A. 2

FONDA et al.

v. O'DONOHUE et al.

No. 288.

Supreme Court of New Jersey.

Nov. 12, 1932.

Syllabus by the Court.

Where a building inspector refused a building permit, because admittedly prohibited by the zoning ordinance, and an appeal is taken to the board of adjustment pursuant to subdivision 4 of section 9 of chapter 274 of P. L. 1928 (Comp. St. Supp. § *136—1200J (9), subd. 4), to obtain a special exception permitting a nonconforming structure and use, it is illegal for the board of adjustment to recommend and for the board of commissioners to approve such special exception and thus overturn the adverse decision of the building inspector, in the absence of legal evidence tending to establish facts which are made prerequisites of such exercise of power by the statute and ordinance, and to overcome the presumption that the ordinance was reasonable in its application.

Proceedings by Harry B. Fonda and others for writ of certiorari to review decisions of Cornelius O. O'Donohue and others, composing the Board of Adjustment and the Board of Commissioners of the City of Orange, recommending special exception to a zoning ordinance overruling finding of Building Inspector, and authorizing issuance of a permit.

Decisions reversed.

Argued May term, 1932, before TRENCHARD, CASE, and BROGAN, JJ.

Roger Hinds, of New York City, for prosecutors.

Hood, Lafferty & Campbell, of Newark (Harry Schaffer, of Newark, of counsel), for respondents.

TRENCHARD, J.

This is a zoning case. The prosecutors (eight neighboring owners) obtained this writ to review the decision and resolution of the Orange board of adjustment overruling the building inspector, and recommending a special exception to the zoning ordinance in favor of the respondent Woman's Club of Orange permitting a structure and uses in the residence A zone admittedly prohibited by the ordinance; also reviewing the concurring action and resolution of the board of commissioners authorizing the issuance of the permit.

The Woman's Club applied to the building inspector for a permit to erect a club house, auditorium, and concreted parking area. The inspector refused the permit on the ground of the prohibition of the ordinance. The Woman's Club appealed to the board of adjustment, asking for a special exception.

Since the premises do not abut, and are not within 150 feet of, any district where the proposed structure and use would be permitted, the appeal was taken under subdivision 4 of section 9 of the zoning statute (P. It, 1928, p. 698, c. 274 [Comp. St. Supp. § *136—4200J (9) subd. 4]) empowering the board of adjustment to recommend, and the governing 'body to approve or disapprove, the issuance of a permit to the appellant.

On November 30, 1931, the board of adjustment, over the protests of the prosecutors and other adjacent and neighboring owners, and without taking any proof, overturned the adverse decision of the building inspector and passed its resolution recommending to the board of commissioners that the permit be issued, and, on the following day, the board of commissioners, without taking any proof, passed a resolution "concurring" in the recommendation of the board of adjustment and "authorizing" the issuance of the permit.

On December 16, 1931, the prosecutors were allowed this writ.

The prosecutors assign numerous reasons for reversal. Without expressing any opinion respecting the others, we confine over-selves to the one which we deem to be fundamental and plainly insurmountable, namely, that the action of the respondent boards wasillegal because taken without any legal evidence which, in the circumstances of the present case, was essential.

The plans and specifications show a building containing an auditorium seating 896 persons, with a large theater stage, ball room, game room, banquet and reception rooms, cloak rooms, smoking rooms, kitchens, ticket office, and other facilities.

The club intends to rent out such facilities in its proposed structure for public dances, theatrical performances, concerts, cabarets, debates, and other public gatherings.

The plans also show a concreted parking area accommodating 160 automobiles.

Such a proposed structure and use, in the residence A zone, is prohibited by the Orange zoning ordinance under at least two different categories, viz.:

(1) Section 2 (a) expressly forbids, in residence A zone, the erection or use of a building for any business permitted in section 5, including dance halls, concert halls, and theaters.

(2) Section 2 (a) (7) permits, in the A zone, only such "accessory uses" as are "customary or incident" to the specified permissible uses (and a 160-car parking area is obviously not "customary or incident" to any specified permissible use).

The Woman's Club admitted that the structure and use are forbidden by the ordinance. It offered no testimony or proof whatsoever either before the board of adjustment or the board of commissioners, although its attorney stated to the board of adjustment that the appeal was based solely on the interest of the community and the improvement the club house would make to the property and its surroundings.

Written and oral protests were made by the prosecutors and other neighbors, including the owners of 63 per cent., by frontage, of the lots within 200 feet, on the ground that the noise and confusion of automobiles and entertainments would depreciate their property and destroy its residential character. One of the prosecutors objected that the board's power to recommend special exceptions is limited to cases where the evidence shows that hardship might result from enforcing its terms or be out of...