Sarg v. Hooper

Pee Curiam.

The prosecutor ivas convicted for violating the zoning ordinance of the borough of Haworth, in Bergen county. The violation consisted in the erection and use of a refreshment stand and gasoline tank upon his property, which was within a district under the ordinance prohibiting the erection and use of any building for business purposes. The' prosecutor is the owner of a large tract of property. The location of the refreshment stand -and gasoline tank is such that there are no other buildings to the north as far as Haworth drive, a distance of .one hundred and fifty to two hundred feet, nor to the south for three hundred or four hundred feet, and the stand is sixty feet back from Washington avenue, on which it fronts.

Three reasons are urged by the prosecutor why the conviction should be set aside. One reason only requires our attention because it requires the setting aside of the convic *365 tion. That reason is: “The ordinance is -unconstitutional, for the reason that it forbids the prosecutor the use of his property for the lawful purpose for which he is using it, and thereby deprives him of his property without compensation and due process of law.”

Under the facts the case sub judice falls clearly within that of Ignaciunas v. Risley, 1 N. J. Adv. r. 1023; affirmed, 2 Jd. 852, in that as applied to the uses to which prosecutor is putting his lands and the structures in question the prohibitions of the zoning ordinance when applied thereto are not within the police powers of the borough in protecting and conserving public health, safety or general welfare.

The result of such finding is that the conviction must be set aside, with costs.