Bauer v. The Board of Fire and Police Commissioners of Paterson

• Court: New Jersey Supreme Court
• Writing for the Court: TRENCHARD, J.
• Citation: Bauer v. The Board of Fire and Police Commissioners of Paterson, 132 A. 515, 102 N.J.L. 235 (N.J. 1926)
• Decision Date: 15 March 1926
• Docket Number: 232
• Parties: WILLIAM H. BAUER ET AL., RELATORS, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF PATERSON ET AL., RESPONDENTS

132 A. 515

BAUER et al.

v. BOARD OF FIRE AND POLICE COM'RS OF PATERSON et al.

No. 232.

Supreme Court of New Jersey.

March 15, 1926.

(Syllabus by the Court.)

Proceeding by William H. Bauer and others, relators, against the Board of Fire and Police Commissioners of Paterson and others on a rule to show cause why a peremptory or an alternative writ of mandamus should not issue to require granting a permit to install gasoline tanks and a fuel tank and necessary accessories on certain property. Rule discharged.

Argued October term 1925, before TRENCHARD, KATZENBACH, and LLOYD, JJ.

Edward F. Merrey, of Paterson, for relators.

Benjamin J. Spitz, of Paterson, for respondents.

TRENCHARD, J. This is a rule to show cause why the board of fire and police commissioners of the city of Paterson should not be directed by peremptory or alternative writ of mandamus to issue to the relators a permit to install three gasoline tanks and one fuel oil tank and the necessary accessories on property located on the southeast corner of Van Houghten and Straight streets in the city of Paterson.

Relators applied in the first instance to the building inspector of the city for a permit to erect a building on the site in question, without mentioning or indicating to what use the building was to be put, and presented plans and specifications in accordance with the building regulations. The permit was granted. The relators, however, did not proceed to build in accordance with the permit, but made an application to the board of adjustment for a permit for the erection of a "drive-in service station" in connection with the building. This was denied by the board of adjustment after hearing, upon the ground that the erection and maintenance of such a service station would be in violation of the zoning ordinance of the city, inasmuch as the proposed station would be less than 200 feet from a church, and therefore forbidden by the ordinance. Without seeking any remedy against the board of adjustment, and without any further application to the building inspector, the relators then made application to the board of fire and police commissioners, and, being again refused, made the present application for a writ of mandamus which we think must be denied.

It is stipulated that there exists in the city of Paterson a zoning ordinance passed November 29, 1921, section 7 of which reads in part as follows:

"Under no circumstances shall a permit be issued for the erection or enlargement of a garage for more than five motor vehicles, or for a motor vehicle sendee station or for the conversion of any premises not so used to be used for such purposes, in any zone, whether it be a business zone or an industrial zone if any part of the lot or plot in question is situated within a distance of two hundred feet as measured along the public streets of, or in any case within any portion of a street between two intersecting streets in which portion there exists: (1) A public school; (2) a duly organized school, other than a public school conducted for children under sixteen years of age and giving regular instruction at least five days a week for eight or more months a year; (3) a hospital, maintained as a charitable institution; (4) a church; (5) a theater containing at least 3.00 seats; or (6) a public library."

Now the relators' application is for a permit to install three gasoline tanks and one fuel oil tank and the necessary accessories in connection with a building to be erected on the relators' premises in question, to be used for selling there automobile accessories and gasoline and oils, and described by the relators as a "drive-in service station." That, we think, is in effect an application for a permit for the erection of a motor vehicle service station.

But the relators contend that "the business proposed to be carried on by relators is not prohibited by section 7 of the zoning ordinance." We think it is. That section prohibits a motor vehicle service station within 200 feet of a church as measured along the public street, and it is admitted that the premises in question are within 200 feet of a church so measured.

The relators, however, argue that "it was clearly the intention of the ordinance to provide quietness in these neighborhoods," and that it "was intended to prohibit the type of station where repairs are made to automobiles, which is characteristically a noisy business." That is no doubt true, but that is not all. It was also intended to prohibit a drive-in service station where gasoline, oil, and...