Eaton v. Town of Montclair

• Decision Date: 19 May 1926
• Docket Number: No. 239.,239.
• Citation: 133 A. 400
• Parties: EATON v. TOWN OF MONTCLAIR et al.
• Court: New Jersey Supreme Court

133 A. 400

EATON

v. TOWN OF MONTCLAIR et al.

No. 239.

Supreme Court of New Jersey.

May 19, 1926.

Mandamus by Frank B. Eaton against the Town of Montclair and William H. Senior, its Building Inspector. On rule to show cause. Peremptory writ awarded.

Argued January term, 1926, before TRENCHARD, KATZENBACH, and LLOYD, JJ.

Howe & Davis, of Orange (Edward L. Davis, of Orange, of counsel), for relator.

George R. Beach, of Jersey City, and Arthur H. Bissell, of Montclair, for defendants.

PER CURIAM. This case is before this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to command the town of Montclair and William H. Senior, its building inspector, to issue a permit to Frank B. Eaton, relator, for the erection of a row of four retail stores on property owned by the relator in the town of Montclair. The property upon which the relator desires to erect the stores is a tract of land located at the northwest corner of Valley road and Brookfield road.

The case is submitted upon an agreed state of facts. From these facts it appears that on October 16, 1925, the relator applied to the said building inspector for a permit to erect the building, and at the same time submitted plans and specifications, and tendered the requisite fees. The permit was refused on the ground that to issue a permit would be in violation of the terms of the zoning ordinance of Montclair. The town of Montclair has a board of adjustment. The relator applied to the board of adjustment. The board of adjustment adjourned the hearing on the application from November 5, 1925, to December 10, 1925. No final decision has ever been made. On December S, 1925, the board of commissioners of Montclair passed an ordinance providing for the taking of the relator's property for plazas or public places open to public travel. The ordinance appropriated the sum of $20,000 for this purpose. The town of Montclair intends, it is argued, to acquire the property. The fact that an ordinance has been passed for the acquisition of the property seems to us to be no bar to the consideration of the present case, for the town of Montclair has not as yet begun condemnation proceedings.

The lot of the relator has a frontage on Valley road of 71 feet plus, and a depth on Brookfield road of 102 feet. Valley road is a main thoroughfare. It has a trolley line on it. Brookfield road joins Valley road just a little north of the point where the Erie Railroad crosses Valley road upon a bridge. The lot is located in what is known as the...