Opinion
Argued May 21, 1946 —
Decided September 12, 1946.
On appeal from the Supreme Court, in which court the following opinion was filed:
"This is a zoning case, Adele M. Brown, a party defendant, conducts an undertaking business in Plainfield; and needing more room purchased a house and lot on the west side of Plainfield Avenue between West Front Street on the north, and the tracks of the Central Railroad Company on the south and adjoining property of the prosecutor Butt Realty Company. The frontage on Plainfield Avenue and on West Front Street is zoned as "C residence" but the interior of the blocks on both sides as `light industrial.' The city engineer refused a variance: on appeal the Board of Adjustment granted it, but on certiorari this court in June, 1945, set aside the action of the board. However, in the following month Mrs. Brown again applied for a variance, which was again granted by the board, and again set aside on certiorari, but `without prejudice to further proceedings' by the said Board * * * or to (by?) the said Adele M. Brown before the `Board * * * in accordance with the rules of the * * * Board * * * and without' prejudice to a further application by the said prosecutors for a writ `of certiorari to review such actions.' A third application was made accordingly, was denied as before, was granted on appeal, and is now before us pursuant to a third writ of certiorari sued out by an adjoining neighbor.
"Judging from the map submitted, there seems to be good reason to think that the block in question is improperly zoned. It seems to be about 500 feet long between West Front Street, a main east and west artery, and the tracks of the Central Railroad. To the west of the property in question for several blocks, the zoning is `light industrial:' and to the east we find `light industrial' and further on `business,' and similarly to the south of the railroad. So the particular locality, on both sides of Plainfield Avenue, from West Fifth Street to Front Street is essentially non-residential, and so zoned, except as to the street frontage of this one block, and in this restricted area are no less than three automobile service stations, two of which occupy the corners of West Front Street.
"For the third time the Board has granted a variance; and this not in any contempt of the court, but based on a freedom of action judicially granted. We think that this court should not interfere further. The writ will accordingly be dismissed."
For the appellants, Joseph Butt.
For the respondents, Salvador Diana and Robert S. Hartgrove.
The judgment under review herein is affirmed, for the reasons expressed in the opinion filed in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, PERSKIE, WACHENFELD, WELLS, RAFFERTY, DILL, FREUND, McLEAN, JJ. 11.
For reversal — HEHER, McGEEHAN, JJ. 2.