Zahn v. Board of Adjustment of City of Newark, A--339
| Decision Date | 24 June 1957 |
| Docket Number | No. A--339,A--339 |
| Citation | 45 N.J.Super. 516,133 A.2d 358 |
| Parties | Irving ZAHN and Ivy Hill Park, Section Three, Inc., a New Jersey corporation, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF NEWARK, and William Fiverson, Zoning Officer, Defendants-Respondents. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Aaron Lasser, Newark, for appellants (Arthur Slavitt, Newark, attorney; Lasser & Lasser, Newark, of counsel).
Joseph A. Ward, Newark, for respondents (Vincent P. Torppey, Atty., Alan Handler and Milton C. Yarrow, Newark, amici curiae).
Before Judges GOLDMANN, FREUN and CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
Plaintiffs instituted this action seeking an adjudication that the establishment by a commercial cleaner of a depot in the basement of a multi-family house, where clothing to be cleaned and pressed off-the-premises
Before Judges GOLDMANN, FREUND doing business under the terms of the zoning ordinance of the City of Newark, or, if it be deemed doing business, for a reversal of the defendant board of adjustment's refusal to grant a variance for its use.
Plaintiff Ivy Hill Park, Section Three, Inc., leased to the plaintiff Irving Zahn a room in the basement of its apartment building to be used as a depot for the deposit and pick-up of various articles of clothing to be cleaned and pressed. The building, a 420-family apartment house, is one of a group of five equally sized buildings located at Ivy Hill Park, in a Fourth Residence District of the City of Newark. Zahn conducts an off-premises dry-cleaning business and intends periodically to pick up the articles of clothing left by the tenants in the basement room and after cleaning and pressing them off the premises, to deliver them directly to the tenants. While no sign outside the building advertises this service, there is a small sign inside indicating its location. The trial court personally inspected the basement room and found that it contained a counter, some shelves, and three pipe racks with clothes hangers. At the time of this inspection, the plaintiff Zahn and a female helper were in the room. The record does not disclose, however, whether this helper was regularly in attendance.
Plaintiffs were informed by the zoning enforcement office that the use they proposed to make of the basement room constituted a business and hence was in violation of the zoning ordinance. They applied for a variance, and after a hearing their application was denied. The present action was therefore initiated, and from a judgment of involuntary dismissal in the trial court plaintiffs appeal upon the following grounds: that the maintenance of a garment pick-up depot for the exclusive use of the apartment tenants does not constitute doing business within the intendment of the zoning ordinance; that the operation of this service is but incidental and accessory to the operation of a large residential apartment development; and that if the proposed service is in violation of the zoning ordinance a variance to permit its operation should be granted, and the refusal of the board to grant one was unreasonable, arbitrary and capricious.
Section 36.5 of the local zoning ordinance, governing permissible uses in a Third Residence District, provides Inter alia:
* * *
* * *'
Section 36.6 governing such uses in a Fourth Residence District, permits 'any use permitted in the Third Residence District.' Both of these sections, however, are silent as to uses incidental or accessorial to the use of a building designated as a 'multiple dwelling.'
Plaintiffs' principal argument on this appeal is that the service would be a convenience to the tenants. Without such a depot, they urge, tenants will be plagued by solicitation from local cleaners and considerable congestion results in the elevators and corridors when their garments are picked up and delivered. It is therefore contended that the service is merely incidental to the primary residential function of the building and not primarily commercial in nature. Although it cannot be denied that the convenience of leaving clothing in a basement depot outweighs that of delivering it to a distant cleaner, such an argument might well defeat the very thesis of zoning, which is that of separation of business and industry from the home. Indeed, it is always more convenient for the customer that the business be closeby. However, sound social, economic and governmental policy dictates a separation, wherever possible, of residential areas from industrial or business areas. Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509, 515, 64 A.2d 347, 9 A.L.R.2d 678 (1949); and see Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 391, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
In support of their contention that the proposed operation does not constitute doing business, plaintiffs rely upon Flagg v. Murdock, 172 Misc. 1048, 15 N.Y.S.2d 635, 639 (Sup.Ct.1939), where the court considered a multiple-family apartment of the type here concerned having in its basement a room referred to as a 'tailor shop' where the tenants would leave their clothing to be collected by a valet who would take the garments off the premises to be cleaned and pressed. The court there stated, 'it can hardly be said this room so used is being used for business.'
The view thus taken in the Flagg case appears to be a somewhat restricted interpretation of the term 'business,' which elsewhere has been said to be a very comprehensive term which Flint v. Stone Tracy Co., 220 U.S. 107 31 S.Ct. 342, 357, 55 L.Ed. 389 (1910); Fisher v. Board of Zoning Appeals of Town of Monroe, 143 Conn. 358, 122 A.2d 729 (Sup.Ct.1956); Ballentine, Law Dictionary (2nd ed.), p. 179; 2 Yokely, Zoning Law and Practice (1953), sec. 214, p. 99; and, in its broad sense, connoting 'the efforts of men by varied and diverse methods of dealing with each other to improve their individual economic conditions.' People ex rel. Attorney General v. Jersin, 101 Colo. 406, 74 P.2d 668, 670 (Sup.Ct.1937).
Our courts, in the context of zoning, have taken a similarly comprehensive view of the nature of a business. See Morris v. Elk Tp., 40 N.J.Super. 34, 122 A.2d 15, 17 (Law Div.1956), where...
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