Newark Athletic Club v. Bd. of Adjustment of Newark
| Decision Date | 04 January 1929 |
| Docket Number | No. 204.,204. |
| Citation | 144 A. 167 |
| Parties | NEWARK ATHLETIC CLUB v. BOARD OF ADJUSTMENT OF NEWARK et al. |
| Court | New Jersey Supreme Court |
Certiorari by the Newark Athletic Club against the Board of Adjustment of Newark and another, to review judgment of Board of Adjustment granting permit to construct garage. Judgment of Board of Adjustment affirmed, and certiorari discharged.
Argued October term, 1928, before MINTURN, BLACK, and CAMPBELL, JJ.
William H. Osborne, of New York City, for prosecutor.
Saul & Joseph E. Cohn, of Newark, for defendants.
On August 29, 1927, the Saybrook Holding Company made application to the superintendent of buildings for a permit to erect a commercial or public garage at 13-23 Saybrook place in the city of Newark.
On August 30th such application was refused by the superintendent of buildings, who made the following notation on the application: "8/30/27 Rejected—Public GarageNot permitted at this site."
The structure was proposed to be erected in a district not zoned against such class of structure, unless the conditions were such as to make an amendment of the zoning ordinance known as section 6a applicable. That section provides:
The applicant on August 30, 1927, filed an appeal from such refusal of the superintendent of buildings to the board of adjustment. The matter came before that body on September 15, 1927, and was laid over to October 6, 1927, which day being a Hebrew holiday, it was further continued to October 7, 1927, when the board of adjustment by its judgment found that the decision of the superintendent of buildings should be reversed and the permit granted.
This writ brings up for review such finding and judgment of the board of adjustment. See 142 A. 923, 6 N. J. Misc. R. 528.
Seven reasons are advanced by the prosecutor why this judgment should be set aside.
Amongst these are some that are not properly reasons. For instance, the third reason is: "The Prosecutor is directly interested in the situation, as its property is affected and it has the right to raise any question raised by this reason." This goes to the question of the status of the prosecutor, which seems to be in no wise contested by the defendants.
The first reason is that the board of adjustment reached its determination without taking any proofs as required by law.
It appears, without contradiction, that the board heard no evidence, but based its conclusion as to the facts entirely upon an inspection and examination of the premises and locality and surroundings by all the members of the board.
Whether or not this was proper or sufficient under Chancellor Development Corporation v. Senior, 134 A. 337, 4 N. J. Misc. R. 633; Hendey v. Ackerman, 103 N. J. Law, 305, 136 A. 733, and Marvin v. Westfield, 137 A. 924, 5 N. J. Misc. R. 668, we think is unimportant, inasmuch as the matters before the board of adjustment did not go to the questions raised in those cases, but purely and solely as to whether the amendment to the zoning ordinance, section 6a, supra, applied to the case in hand.
The second reason is: "The building superintendent, the Transportation Department and the Traffic Department of the City of Newark are all opposed to the erection of this garage; the congestion in Saybrook Place and vicinity is so great that this garage will materially interfere with traffic conditions; traffic jams there have reached the saturation point."
This is immaterial and of no consequence to the matter before us, because, as before stated, the structure in question is not prohibited by the zoning ordinance of the city of Newark unless it be by section 6a, supra.
Reason 6 is: "The burden is on defendants to show the erection is proper and they have not established that fact by any proofs of any kind."
The soundness or unsoundness of this proposition we are not passing upon, because we think it unnecessary in view of the matters we will later pass upon.
Reason 7 is general:
To this our answer is that the conclusions we have reached as to the remaining reasons, 4 and 5.
Reasons 4 and 5 insist that the permit should have been refused by the board of adjustment, as it was properly refused by the superintendent of buildings, because the building of the prosecutor is used for public entertainment and the Trinity Parish House is a church and a school, all within the intendment of section 6a, supra. If these contentions or either of them, were true, both structures are within the prescribed...
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