Ricci v. Meyer

135 A. 666, 5 N.J. Misc. 102, 1927 N.J. Sup. Ct. LEXIS 374

• Court: Supreme Court of New Jersey
• Decided: January 18, 1927
• Status: Published

Opinion

Per Curiam.

This is an application for a writ of mandamus to compel the issuance to relator of a building permit for the erection of a four-story, thirty-four family apartment-house on lands of relator, situate on the southerly side of Knox avenue, in the borough of Cliffside Park. Application was made to the building inspector, who denied it, and then the matter was brought before the borough council at a meeting held September 13th, 1926, which body also denied the application upon the ground that the proposed apartment-house, if constructed, would violate the set-back regulation of the building code as well as the provisions of the zoning ordinance.

The zoning ordinance regulates and restricts development in Knox avenue, in the section where relator’s property is situated, to one and two-family houses.

Section 18 of the building code provides as follows: “Where at least one-half of the buildings situated on either side of the street between two intersecting streets conform to a minimum set-back line, no new buildings shall be erected and no existing building shall be reconstructed or altered to project beyond such set-back line.”

Such a provision in an ordinance we think so clearly violates the constitutional rights oí property owners as not to permit of argument or require citation of authority.

The other reasons assigned by respondents against the allowance of the writ applied for are such only as have been repeatedly passed upon by the Court of Errors and Appeals and this court, adversely to respondents’ contentions.

The question of appeal to the board of adjustment is not raised by respondents nor have we before us any proof that such a board or body exists in the borough of Cliifside Park.

A peremptory writ of mandamus is therefore allowed, with costs.