Bergen County v. Melillo, A-14.
| Citation | 68 A.2d 741 |
| Decision Date | 24 October 1949 |
| Docket Number | No. A-14.,A-14. |
| Parties | MT. ZION BAPTIST CHURCH OF LODI TP., BERGEN COUNTY v. MELILLO et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Mt. Zion Baptist Church of Lodi Township, Bergen County, New Jersey, a church corporation of the State of New Jersey, sued Ralph Melillo, Building Inspector of the Township of South Hackensack, and another to set aside the provisions of the building code of the defendant township in so far as it required plaintiff to reconstruct its existing structure.
The Superior Court, Law Division, rendered judgment for the plaintiff, and defendants appealed.
The Supreme Court, Wachenfeld, J., affirmed the judgment and held that the building code provision was unreasonable in requiring the reconstruction of an existing structure as a condition to the granting of a building permit for the construction of an addition which complied with the requirements of the ordinance.
Ralph W. Chandless, Hackensack, argued the cause for appellants (Chandless, Weller, Kramer & Frank, Hackensack, attorneys.)
Walter T. Wittman, Hackensack, argued the cause for respondent.
The opinion of the court was delivered by
This appeal is from a judgment in the Law Division of the Superior Court setting aside the provisions of the building code of the defendant township in so far as they require the respondent to reconstruct its existing structure. It is also ordered the building inspector forthwith to issue a building permit for the construction of an addition in accordance with the respondent's plans and specifications. The case was certified here on our own motion.
The Mt. Zion Baptists Church is the owner of a parcel of land fifty by one-hundred feet in the appellant township. For about twenty years there has been a church building on this land, the existing structure being thirty feet wide and forty-two feet long and having eight-inch walls of cinder block construction.
The church is located in a fire zone. The area is undergoing industrial development but at present there are no industrial establishments in the immediate vicinity of the church. It is conceded, however, that the establishment of the fire zone in this area is proper.
In May 1947, respondent applied for a building permit to allow it to construct an addition to the church. This was refused. Thereafter, the township adopted an ordinance providing a building code which, amongst other things, established the fire zone in which the church is located. Section 7 of the ordinance provided in part as follows:
The code also provided that masonry bearing walls of the height of the present church building should be twelve inches thick and that ‘no cellar or part or portion of any building or structure beneath the level of the street shall be constructed or altered to be used for living, eating or sleeping purposes or as a place of public assembly.'
Subsequent to the passage of the ordinance, respondent again filed plans to construct an addition eighteen feet long and thirty-six feet wide on the rear of the existing building. The permit was refused by the building inspector on the ground it did not comply with the building code in that, while the construction of the addition itself complied with all the provisions for new construction, the plans did not include a reconstruction of the existing building to increase the thickness of its exterior walls from eight to twelve inches.
The church brought this action to set aside the provisions of the ordinance, in so far as they purport to prohibit the construction of the addition, and to compel the issuance of the permit. The township justified its refusal to issue the permit on the ground that the plans filed by respondent did not include the widening of the already existing exterior walls. At the hearing, appellants made further objection to the plans on the ground that they called for the construction of a kitchen in the basement of the new addition the floor of which would have been about two feet below the street level, thus, it is alleged, violating the section of the code quoted above relating to the use of a cellar or part of a building below street level for living, eating or sleeping purposes or as a place of assembly.
The court below, in finding for the respondent, said: ...
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Cox v. Wall Tp.
...N.J. 424, 429, 88 A.2d 616 (1952). The regulations are presumed to be reasonable in that regard, Mt. Zion Baptist Church of Lodi Tp., Bergan County v. Melillo, 3 N.J. 61, 65, 68 A.2d 741 (1949); and any person attacking them will not prevail unless he clearly establishes that they are not s......