Chancellor Development Corp. v. Senior

134 A. 337, 4 N.J. Misc. 633, 1926 N.J. Sup. Ct. LEXIS 150

• Court: Supreme Court of New Jersey
• Decided: June 26, 1926
• Status: Published

Opinion

The opinion of the court was delivered by

Gummeke, Chief Justice.

I think the application should be denied. The legislature, by this amendatory statute of 1926, has created this board of adjustment a tribunal of review, and has vested in it the power to determine on the appeal of the property owner whether this particular building, located in this particular place, is a public menace to the health, welfare or safety of the community. That is a fact which it is to determine, after hearing testimony. It has heard testimony and has determined that it is, according to the reading of the report made by the board, its decision not being based solely upon the ground that it violates the ordinance, but that this building, located in this place, will be a public menace. Now, whether that finding is justified by the proofs before it is a question of fact. If there is no evidence to sustain it, it cannot stand. If it is justified by the proofs before the board, that would be the end of the relator’s alleged right to a permit.

This seems to me not to be a case for an alternative writ for the purpose of reviewing the action of the inspector, but for a certiorari to review the action of the board of adjustment.