Ramsbotham v. Bd. Of Pub. Works Of City Of Paterson

• Decision Date: 25 April 1949
• Docket Number: Nos. A-90 and A-91.,s. A-90 and A-91.
• Citation: 65 A.2d 748
• Parties: RAMSBOTHAM et al. v. BOARD OF PUBLIC WORKS OF CITY OF PATERSON et al. (two cases).
• Court: New Jersey Supreme Court

65 A.2d 748

RAMSBOTHAM et al.

v.BOARD OF PUBLIC WORKS OF CITY OF PATERSON et al. (two cases).

Nos. A-90 and A-91.

Supreme Court of New Jersey.

April 25, 1949.

Appeal from former Supreme Court.

Certiorari proceedings by Harry Ramsbotham and others against the Board of Public Works of the City of Paterson, the Board of Adjustment of the City of Paterson, and others, to review resolutions of the Board of Public Works approving the recommendations of the Board of Adjustment for issuance of permits to defendant Harold Meyer for a used automobile lot and to defendant Blosmor Holding Company for construction and use of a motor vehicle service station. From judgments of the former Supreme Court, 137 N.J.L. 559, 61 A.2d 196, and 137 N.J.L. 561, 61 A.2d 197, the prosecutors appeal.

Reversed, and grants of variances vacated.

Edward G. Weiss, of Paterson, (Joseph J. DeLuccia, of Paterson, on the brief), for appellants.

Charles Joelson and Benjamin J. Spitz, both of Paterson, for respondents.

Charles S. Silberman, of Paterson, for respondent Harold Meyer.

Spitz & La Cava, of Paterson, for respondent Blosmor Holding Co.

John M. B. Ward, of Paterson, for other respondents.

George Surosky, of Paterson, on the brief for respondents.

ACKERSON, Justice.

These appeals are from judgments of the former Supreme Court sustaining, on certiorari, resolutions of the Board of Public Works of the City of Paterson approving the recommendations of the local Board of Adjustment for the issuance of permits to the defendant Harold Meyer for a used car lot on his property at Nos. 764-766 Market Street, and to the defendant Blosmor Holding Company for the construction and use of a motor vehicle service station on its premises Nos. 726-730 Market Street in that city. The appeals involve similar questions of law and facts, and having been argued together will now be disposed of in that manner.

The properties are located in a class ‘B’ residential zone where the contemplated uses thereof are prohibited by the applicable zoning ordinance, and the Board of Adjustment, in recommending the variations therefrom, found that unnecessary hardship would result to the applicants from a literal enforcement thereof, which is a statutory prerequisite to the action thus taken. R.S. 40:55-39, N.J.S.A.

After obtaining the writs of certiorari to review the aforesaid proceedings, depositions were taken by the prosecutors to supplement the proofs adduced before the local boards. Defendants object in limine to the use thereof on the ground that in such cases the reviewing court is limited to the consideration of the evidence presented in the local tribunals. But it makes no difference in the result we have reached, for, regardless of the depositions, we find no basis in the proofs before the local boards to sustain findings of undue hardship within the meaning of the applicable statute.

The Meyer property has a frontage of 63 feet on Market Street and about 80 feet on East 29th Street. The Blosmor Holding Company property is located two blocks to the west on Market Street and has a frontage thereon of 123 feet and 126.37 feet on East 27th Street. Both properties were acquired by their present owners long after the adoption of the zoning ordinance, and both are in a ‘B’ residential zone which begins at East 29th Street and continues westward on Market Street without interruption, a distance of four blocks to East 25th Street, an area devoted primarily to substantial dwellings. At East 27th Street, Market Street is joined at an angle by Twentieth Avenue which, for a distance of twelve blocks west of this junction, is all in ‘B’ and ‘C’ residential zones.

At the hearings before the local boards there was vigorous opposition to granting the desired variances from numerous property owners in that area. The testimony on behalf of the applying lot owners came principally from two realtors, and considered in its most favorable aspect for said owners, was to the effect that Market Street is a heavily travelled main artery to and from the center of the city; that business has located on this street eastward ‘up to East 25th Street’ and then, after four blocks of residences, commercial occupancy continues ‘beyond East 29th Street’; that ‘business should have an opportunity to develop’ into the residential area between the last named...