Adelmann v. Williams

Supreme Court of New Jersey

Adelmann v. Williams

159 A. 148, 10 N.J. Misc. 324, 1932 N.J. Sup. Ct. LEXIS 244

CourtSupreme Court of New Jersey

DecidedMarch 2, 1932

StatusPublished

Cited by1 cases

This text of 159 A. 148 (Adelmann v. Williams) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adelmann v. Williams, 159 A. 148, 10 N.J. Misc. 324, 1932 N.J. Sup. Ct. LEXIS 244 (N.J. 1932).

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Opinion

Pee Cubiam:.

This is an application for a rule to show cause why a writ of mandamus should not issue to compel the town of Belle-ville, or the building inspector, to issue a building permit for the erection and construction of a warehouse on the rear of 57 Balph street, in said town. An application was made to the Chief Justice, which he refused.

[325]*325To begin with the relator submits no proof of any of the matters discussed in his brief. The respondents submit a brief and some affidavits which contradict in essential particulars statements made in the brief of the relator.

It appears that the relator applied for a permit on February 19th, 1931. The application was received by the building inspector for consideration, and on February 24th it was refused. It appears that on February 16th, there was presented a petition by twenty-seven property owners requesting a change in the use of: the property in that district, including the lot in question, to a residential zone, whereas it had previously been in an industrial zone in the zoning ordinance. It appears that the petition was considered at a meeting on February 17th, and on February 24th the commissioners of the town adopted the amendment to the zoning ordinance on first reading. It appears, therefore, that, while perhaps the property was not within the prohibited zone at the time the application was made, it was thereafter included in the residential area and a permit would not thereafter have been granted.

The allowance of a writ of mandamus rests in the sound discretion of the court. In this case we have nothing before us which would move the court to exercise this discretion in behalf of the relator. As was said in Rohrs v. Zabriskie, 102 N. J. L. 473, and approved in Koplin v. South Orange, 6 N. J. Mis. R. 489; affirmed, 105 N. J. L. 492: “It would be an abuse of that power for this court to direct the municipality to grant a permit for the erection of a building the existence of which, if erected, has already been declared by legal authority to be a menace to the safety of the community.”

The rule to show cause is denied, with costs.

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Pee Cubiam:.

This is an application for a rule to show cause why a writ of mandamus should not issue to compel the town of Belle-ville, or the building inspector, to issue a building permit for the erection and construction of a warehouse on the rear of 57 Balph street, in said town. An application was made to the Chief Justice, which he refused.

[325]*325To begin with the relator submits no proof of any of the matters discussed in his brief. The respondents submit a brief and some affidavits which contradict in essential particulars statements made in the brief of the relator.

It appears that the relator applied for a permit on February 19th, 1931. The application was received by the building inspector for consideration, and on February 24th it was refused. It appears that on February 16th, there was presented a petition by twenty-seven property owners requesting a change in the use of: the property in that district, including the lot in question, to a residential zone, whereas it had previously been in an industrial zone in the zoning ordinance. It appears that the petition was considered at a meeting on February 17th, and on February 24th the commissioners of the town adopted the amendment to the zoning ordinance on first reading. It appears, therefore, that, while perhaps the property was not within the prohibited zone at the time the application was made, it was thereafter included in the residential area and a permit would not thereafter have been granted.

The allowance of a writ of mandamus rests in the sound discretion of the court. In this case we have nothing before us which would move the court to exercise this discretion in behalf of the relator. As was said in Rohrs v. Zabriskie, 102 N. J. L. 473, and approved in Koplin v. South Orange, 6 N. J. Mis. R. 489; affirmed, 105 N. J. L. 492: “It would be an abuse of that power for this court to direct the municipality to grant a permit for the erection of a building the existence of which, if erected, has already been declared by legal authority to be a menace to the safety of the community.”

The rule to show cause is denied, with costs.

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Bluebook (online)

159 A. 148, 10 N.J. Misc. 324, 1932 N.J. Sup. Ct. LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adelmann-v-williams-nj-1932.

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