Rain or Shine Box Lunch Co. v. Board of Adjustment of City of Newark, A--524

• Decision Date: 16 December 1958
• Docket Number: No. A--524,A--524
• Citation: 147 A.2d 67,53 N.J.Super. 252
• Parties: RAIN OR SHINE BOX LUNCH CO., a corporation of New Jersey, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the CITY OF NEWARK and Norman J. Muller, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 252

53 N.J.Super. 252

147 A.2d 67

RAIN OR SHINE BOX LUNCH CO., a corporation of New Jersey, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the CITY OF NEWARK and Norman J.

Muller, Defendants-Appellants.

No. A--524.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 27, 1958.

Decided Dec. 16, 1958.

Joseph A. Ward, Newark, argued the cause for defendants-appellants (Vincent P. Torppey, Corp. Counsel, Newark, attorney).

Irving Mandelbaum, Newark, argued the cause for plaintiff-respondent.

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

The Law Division entered judgment setting aside the denial of an application for a variance from the zoning ordinance of the City of Newark by the board of adjustment of that municipality and directing that the appropriate officers of the city issue a permit authorizing the construction upon and use of the land in question as a 'parking station' in connection with the operation of plaintiff's business. The defendants, board of adjustment and zoning enforcement officer of the city, respectively, appeal.

The plaintiff operates a catering business from premises at 501--509 Broadway in the City of Newark. It prepares food for consumption off the premises, delivering its product by truck. Its building, situated on Broadway, with a frontage of about 125 feet, is owned by a corporation of related proprietorship which also owns the lots on Oraton Street and Chester Avenue which are the subject of this controversy. The building fronting on Broadway contains offices, facilities for preparation of food products and a garage used by plaintiff for storing its trucks, which number about 50. Plaintiff also has an auxiliary garage for trucks on the nearby corner of Broadway and Chester Avenue. An entrance into the main building by ramp from Broadway serves both for ingress and egress of plaintiff's trucks and for the vehicles of suppliers to plaintiff of materials essential to its business. This building is in a 'second business' district, and plaintiff's operation apparently conforms thereto. A use map in evidence shows, however, that half or more of the Broadway frontage on both sides of the street in the near vicinity of plaintiff's plant is devoted to residential uses, although a witness for plaintiff made a general statement to the contrary.

Abutting a part of the rear line of plaintiff's building is an L-shaped tract of vacant land owned by plaintiff's related holding company, having a frontage of 150 feet on Oraton Street (running parallel with Broadway) and 25 feet on Chester Avenue. Chester Avenue intersects both Broadway and Oraton Street. This rear tract, for which a zoning variance was sought by plaintiff, is in a 'third residential' district, in which commercial parking is not a permitted use. There were two residences on the property when the plaintiff interests acquired it, but these were later torn down.

The formal application for a variance for the Oraton Street-Chester Avenue tract requested a permit for the 'establishment of a truck parking station including parking of visitors and employees automobiles' (sic). The plaintiff's proofs and the explanation of its counsel before the board made it clear, however, that the tract was also intended to be used as an alternative or supplementary means of access for trucks to the Broadway building, in order to relieve the functional inadequacy of the Broadway ramp entrance, a situation which has been causing the backing up and double parking of its trucks along Broadway while awaiting loading or unloading in the building.

There is evidence indicative of the fact that Broadway, Oraton Street and Chester Avenue, in the vicinity of plaintiff's plant, have substantial daytime parking congestion. Broadway is a two-way county thoroughfare with considerable traffic. Oraton Street is a one-way street, the traffic running into Chester Avenue. The use map aforementioned indicates that Oraton Street on both sides is almost entirely residential in the block where the Locus in quo is situated. This is also true of the side of Chester Avenue on which lies the frontage presently involved, as well as both sides of Chester Avenue south of the line of Oraton Street projected into the intersection with Chester Avenue. There is an auto repair shop, however, on the easterly side of Chester Avenue, near Oraton Street.

Before the board of adjustment the emphasis of plaintiff's case was placed upon a need for off-street parking space for its employees who drive to work (stated by one witness to number 60 and by another, 35) and business visitors. An attempt was made to show the public benefit which would accrue from taking these vehicles off the streets where they now park. However, plaintiff's food processing operations commence at midnight and deliveries go out in the early morning. Operations close down at 2:00 P.M. It is not clear from the proofs to what extent neighborhood parking congestion concurs with the hours of plaintiff's operation. It may be inferred, however, that a moderate degree of neighborhood parking relief would result from the availability of the 30- to 36-car capacity which plaintiff's officer testified the rear lot would afford if the variance were granted, subject, however, to such parking of trucks on the lot and use of the area for truck ingress and egress to and from the building as was referred to above.

A written report was submitted to the board in connection with this matter by Edward L. Cyr, City of Newark engineer in charge of the bureau of traffic and signals. This recites, in part:

'A need for off-street parking is great in this area and the establishment of the proposed parking area will greatly relieve parking, not only on Chester Avenue and Oraton Street, but also on Broadway as well.

'In my opinion the approval of this area for a parking lot should not increase the traffic hazards in this area provided the proposed driveway on Chester Avenue is eliminated. * * *'

Some question of plaintiff's sincerity in professing the motive of parking relief for its employees and the city in general may be raised by the fact that in recent years it has made a number of applications for a variance to erect an addition to its building on the lot in question, all of which were denied.

Certain property owners and residents in the vicinity of Oraton Street and Chester Avenue, unrepresented by counsel (although one of them is a lawyer), testified informally as to their reasons for objecting to the variance. In summary, their objections were as follows: There is a great deal of noise and odor emanating from plaintiff's establishment now, to the extent that it is often difficult to sleep nights (particularly during the summer), and if plaintiff is permitted to park or load trucks in the now vacant lot, the condition will be even worse. One complained of the noise of the trucks as they left the Chester Avenue garage in the early morning. There were also contentions that the variance would result in a devaluation of surrounding properties and that the entrance of trucks into the lot from Chester Avenue would create a hazard to the school children who use that street. In answer to the questions of plaintiff's attorney whether a paved, shrubbed lot would not add to the attractiveness of the corner, two objectors complained that it was plaintiff who had made the area unattractive by demolishing the buildings that had formerly stood there.

The board voted to deny the variance on the stated grounds:

'* * * it being determined and adjudged that the application of appeal be denied because after having inspected the premises and the surrounding neighborhood and heard the testimony given at the hearing, the Board decided that, (1) the application would depreciate property values and be detrimental to the public health, safety and welfare; (2) the applicant had not proven a hardship; (3) the proposed use would adversely affect the intent and purpose of the Zoning Ordinance and the Master Plan.

'And the proposed use, with due consideration of conditions and surroundings, would be inimical to the public safety and general welfare if located on said premises, and is not reasonably necessary for the convenience of the community; and that relief could not be granted without substantial detriment to the public good and that the use would substantially impair the intent and purpose of the Zone Plan and the Zoning Ordinance.'

This ruling was challenged by the present action in lieu of prerogative writs. On the record of the proceedings before the board the Law Division held that there was no evidence to substantiate any of the points upon which the variance was refused and that the denial was therefore 'arbitrary and capricious.'

It must be noted at the outset of our consideration of the merits of the appeal that the board of adjustment had no statutory jurisdiction to grant the requested variance, but only to recommend one to the governing body, since the use requested was prohibited by the zoning ordinance in a third residential zone. N.J.S.A. 40:55--39. Even were such action warranted on the merits, the most that the Law Division could have properly done would have been to direct the board to make the recommendation. Cf. Cummins v. Board of Adjustment of Leonia, 39 N.J.Super. 452, 457, 121 A.2d 405 (App.Div.1956), certification denied 21 N.J. 550, 122 A.2d 672 (1956). The matter was handled before the board as though it came within paragraph (c) of the cited section rather than, as it properly does,...