Stolz v. Ellenstein, A--139

• Decision Date: 11 June 1951
• Docket Number: No. A--139,A--139
• Citation: 81 A.2d 476,7 N.J. 291
• Parties: STOLZ v. ELLENSTEIN et al.
• Court: New Jersey Supreme Court

Page 291

7 N.J. 291

81 A.2d 476

STOLZ v. ELLENSTEIN et al.

No. A--139.

Supreme Court of New Jersey.

Argued May 21, 1951.

Decided June 11, 1951.

Edward M. Malone, Jersey City, argued the cause for appellants.

Samuel J. Zucker, Newark, argued the cause for respondents (Lester Sandles, Newark, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The Fisher brothers own contiguous properties on Hillside Avenue and Watson Avenue, Newark. The Watson Avenue property is in a zone designated in the city ordinance as a First Business District. The Hillside Avenue property is located in a Third Residence District and has at the rear five garages which adjoin the Watson Avenue property.

For several years the Fisher brothers have conducted on the Watson Avenue property a dry cleaning establishment in premises originally designed to accommodate a small neighborhood tailor shop. The business has expanded and the property is now being used as a central cleaning plant for six other tailor shops operated by them.

The pertinent section of the city's zoning ordinance provides that in a First Business District no building or premises shall be used for any industrial, manufacturing or commercial purpose above the ground story of the building, nor for any trade, industry or use prohibited in Second Business Districts. The ordinance further provides that in Second Business Districts there shall be no dry cleaning or dyeing establishment employing power machinery. The part of the ordinance pertinent to Third Residence Districts, in which the Hillside Avenue property is located, prohibits the use of buildings for any industrial, manufacturing or commercial purpose.

The business conducted by the Fisher brothers outgrew its present quarters and in 1948 they applied to the Board of Adjustment of Newark for permission to extend the dry cleaning plant to the second floor of the Watson Avenue building and to use one of the garages on the Hillside Avenue land as a boiler room for the plant. Several of the neighbors strenuously objected but the Board of Adjustment, after hearing the proponents and objectors, nevertheless recommended the requested variances be granted and its action was confirmed, after a further hearing, by two resolutions of the City Commission.

The neighbors thereupon filed a complaint in lieu of certiorari in the Superior Court. The court found no hardship existed to justify the granting of the variances and set aside the recommendations of the Board of Adjustment and the resolutions of the Board of Commissioners. From this judgment the Fisher brothers appealed to the Appellate Division and the cause has been certified here on our own motion.

At the time the application for a variance was made, R.S. 40:55--39, N.J.S.A. defining the powers of the Board of Adjustment, provided the Board might: 'c. Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a litteral enforcement of the provisions of the ordinance will result in unnecessary hardship * * *.'

The act also empowered the Board to: 'd. Recommend in writing to the governing board or board of public works upon appeal in specific cases that a structure or use be allowed in a district restricted against such structure or use where the real estate in respect of which such recommendation is made does not abut a district in which such structure or use is authorized by the zoning ordinance or where such real estate is more than one hundred and fifty feet beyond the boundary line of the district in which such structure or use is allowed by the zoning ordinance. * * *'

The requirement of a finding of unnecessary hardship as a prerequisite for the granting of a variance was emphasized in Lumund v. Board of Adjustment of Borough of Rutherford, 4 N.J. 577, 73 A.2d 545 (1950), and Brandon v. Board of Com'rs of town of Montclair, 124 N.J.L. 135, 11 A.2d 304 (Sup.Ct.1940), affirmed 125 N.J.L. 367, 15 A.2d 598 (E.&A.1940), and the finding must be 'substantially grounded in competent evidence.' Scaduto v. Town of Bloomfield, 127 N.J.L. 1, 20 A.2d 649, 650. (Sup.Ct.1941).

The standard for determining such a hardship was set forth in Ramsbotham v. Bd. of Public Works, of City of Paterson, 2 N.J. 131, 65 A.2d 748, 750. (1949), where, referring to the statutory provision quoted above, we said: 'This provision is operative only where the applicant's plight is 'owing to special conditions', that is, to circumstances uniquely touching his own land as distinguished from conditions that affect the whole neighborhood. And it is not Per se a sufficient reason for a variation that the nonconforming use is more profitable to the particular landowner.'

In Scaduto v. Bloomfield, supra, the court expressed it thus 'The criterion of 'unnecessary hardship' is whether the use restriction, viewing the property in the setting of its environment, is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property. Is the environment such that the lot is not reasonably adapted to a conforming use?'

The proof here shows no such hardship. The appellants commenced the operation of their business in what they knew to be a restricted neighborhood. In its newly attained proportions of a sizable industrial enterprise, the business has prospered and outgrown the...