
    ALBERT R. BERDAN AND CLYDE D. RICHARDSON, PROSECUTORS, v. CITY OF PATERSON, BOARD OF PUBLIC WORKS OF THE CITY OF PATERSON, THE BOARD OF ADJUSTMENT OF THE CITY OF PATERSON, WILLIAM BYRNES, BUILDING INSPECTOR OF THE CITY OF PATERSON, AND ANCO PRODUCTS CORPORATION, DEFENDANTS.
    Argued May 6, 1948
    Decide June 21, 1948.
    
      Before Justices Douges, Colie and Eastwood.
    For the prosecutors, Charles Hoisted.
    
    For the defendants City of Paterson, &c., John M. Ward and George Surosky.
    
    For the defendant Anco Products Corporation, Morris Pashman.
    
   The opinion of the court was delivered by

Eastwood, J.

A writ of- certiorari was allowed prosecutors to review the proceedings of the Board of Adjustment of the City of Paterson, whereby a variance for a nonconforming use was granted defendant, Anco Products Corporation, for the conduct of a heavy industrial machine shop in its building and premises located at 911-937 East Twenty-third Street, in the City of Paterson aforesaid; said premises being in a district classified as “B” residential, as set forth in the building and zoning ordinance of the City of Paterson. At the termination of the formal hearing held by the Board of Adjustment, it filed a written opinion of its conclusions and, among other things, stated:

"Conclusion: From the testimony adduced at the hearing it was established that the main use of the Building and premises prior to and for some time thereafter the making and enactment of the Zoning Law in 1931 was Textile Manufacturing a light industrial use. This then establishes the maximum degree of non-conformity under which this building and premises may continue to operate in accordance with the Zoning Ordinance of the City of Paterson. The evidence shows that for many years after the adoption of the ordinance various uses were in operation at one time or another on these premises (A textile plant, a yarn clearing house, an aircraft body company and a rayon plant) the original and subsequent uses are allowable in a light industrial zone providing they are not noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise. The existing use is a heavy industrial one and its proper classification is a machine shop. This is quite different from any of the prior uses and it is not allowed in a Light Industrial Zone. Section Y, subdivision 15 (iron, steel, brass or copper works or foundry) subdivision 39.”

' It will be observed that the Board of Adjustment concluded that the application for said variance was not justified.

It also appears that the defendants have not established a case of unnecessary hardship. For did the Board of Adjustment, in its findings, conclude that to deny the owner’s application “would constitute an unnecessary and unjust invasion of the fundamental right of property.” Scadulo v. Bloomfield, 127 N. J. L. 1.

The determination of the Board of Adjustment of the City of Paterson is accordingly set aside, with costs.  