Michel v. Village of South Orange

127 A. 794, 3 N.J. Misc. 243, 1925 N.J. Sup. Ct. LEXIS 273

• Court: Supreme Court of New Jersey
• Decided: February 26, 1925
• Status: Published

Opinion

Per Curiam.

•This matter is before the court upon a rule to sho-w cause why an alternative or peremptory writ o-f mandamus should not issue requiring the building inspector of South Orange to issue to relator a permit to erect a three-story brick apartment-liouse, forty feet in heighth, for twenty-seven families, at the corner of South Orange avenue and Turreli avenue, in South Orange.

Proper application was made for such permit on July 29th, 1924. The plans and specifications comply with the building code of South Orange, and have been approved by the tenement-house commission of this state.

The permit was refused because the zoning ordinance of South Orange would require the proposed building to set back forty feet from the property line on South Orange avenue and fifteen feet from the property line on Turreli avenue, and the proposed location of the building in question did not meet this requirement. This requirement of the ordinance is sought to ho justified upon the ground that South Orange and Turrell avenues are heavi-ly traveled highways, and the erection of the proposed structure at the property lines of the avenues-would seriously affect the public safety.

Another ground of refusal is that the fire-fighting • facilities of the village are not sufficient to properly cope with a fire in such -a building as that proposed.

And a still further ground of refusal is that the proposed building is designed to be erected in a district restricted by the zoning ordinance against apartment-houses.

This matter is like the case of Ingersoll v. South Omnge, decided by this court and reported in 2 N. J. Mis. B. 882, in so far as the question of fire protection is concerned® and has the added feature of the building set back requirements.

In the Ingersoll case, in allowing an alternative writ this court said: “The introduction of this provision [fire protection] presenting a situation of-public necessity upon which it is argued the inherent police power of the municipality for the general welfare may be invoked, as a superadded power to the legislative zoning concession, injects into the case a new municipal feature, which up to this period has not received the consideration of the appellate court.”

As has been already stated, the case now before us has the added requirements for setting back the building from the street line as a measure necessary fo'r the safety of public travel.

For these reasons we conclude that an alternative writ of mandamus be allowed, for the purpose that the pleadings may be so framed as to properly present these matters upon appeal.

Let such a rule be entered.