Conaway v. Atl. City

• Decision Date: 13 March 1931
• Docket Number: No. 213.,213.
• Parties: CONAWAY et al. v. ATLANTIC CITY et al.
• Court: New Jersey Supreme Court

154 A. 6

CONAWAY et al.

v. ATLANTIC CITY et al.

No. 213.

Supreme Court of New Jersey.

March 13, 1931.

Syllabus by the Court.

Prosecutors, owners of land in the same zoning district and in immediate vicinity of property described in permit claimed to violate zoning ordinance, held to have such interest as entitles them to challenge the legality of such permit.

Syllabus by the Court.

Later zoning ordinance held to supersede one earlier in date.

Syllabus by the Court.

Zoning ordinance providing that "no building shall be erected or altered," which is intended for certain uses, held to prohibit the "erection of an addition" to such building. Syllabus by the Court.

The rule that, where the Legislature has provided a statutory appeal, as to a board of adjustment, procedure should be exhausted before appealing to courts of law, is not an absolute one, and the court in its discretion may act in the first instance where the circumstances of the case appear to require such action.

Certiorari proceeding by Walt P. Conaway and others to determine the legality of a building permit granted by J. A. Paxson, acting Mayor, as Director of Public Affairs, of the City of Atlantic City, to the Pacific Garage Company.

Permit set aside.

Argued January term, 1931, before PARKER, CAMPBELL, and BODINE, JJ.

Cole & Cole, of Atlantic City, for prosecutors.

Joseph B. Perskie, of Atlantic City, for defendants.

PARKER, J.

The question to be decided is the legality of a permit purporting to have been granted July 7, 1930, by J. A. Paxson, acting mayor, as director of public affairs, and to permit the Pacific Garage Company "to erect Two (2) Story addition to present garage as per plans & spcf" (specifications) "in accordance with the specifications and plans filed with the Building Department, * * *" at 1715-1717 Pacific avenue, Atlantic City, east of Indiana avenue.

Besides the zoning legislation of 1928, P. L. page 696, two local ordinances bear upon the situation. That first in point of time is an ordinance of May 2, 1929; the other is the zoning ordinance of November 29, 1929, which contains a proviso that, where it "imposes a greater restriction upon the use of buildings * * * than * * * required by * * * existing provisions of law or ordinance * * * the provisions of this ordinance shall control."

The prosecutors are owners of real estate in the immediate vicinity of the garage in question. Prosecutor Conaway owns the nearest street corner in the same block, thirty or forty feet away; prosecutor Andrews, the nearest corner on the next block; prosecutor Somers, on Indiana avenue near Pacific avenue, farther away than the others, but in the same general territory. It is objected at the outset that none of them, as a mere neighbor, has any status to question the legality of the permit; but in this we cannot concur. One of the fundamental theories of a zoning ordinance is to place all owners in a zone on the same footing and avoid invidious distinctions. Hence each of such owners would seem to have a lively interest in seeing to it that the others obey the rules, and that the authorities act according to the powers conferred on them and not beyond them. That interest is expressly recognized in the act of 1928, for example in requiring advertisement and public hearings preliminary to adopting any ordinance; in requiring that regulations shall be made with a view of conserving the value of property, and encouraging the most appropriate use of land (section 5); and in conferring upon the owners of lots included in any proposed change or of lands within one hundred feet to the rear or front (excluding the street) a veto power by a 20 per cent. protest, such veto to be overcome (section 8) only by a three-fourths vote of the municipal body. Such interest is further recognized by the provision in section 9 relating to appeals to the board of adjustment, page 700, that notice must be given to all property owners within two hundred feet of the property to be affected by the appeal. The very scheme of the statute connotes a neighborhood interest in the enactment and enforcement of a zoning ordinance. How widely that interest extends need not be here decided. It is clear that Conaway has such an interest, and perhaps both of the others also. The point was directly decided by this court in Gaston v. Ackerman, 142 A. 546, 6 N. J. Misc. R. 696, on motion to vacate an allocatur, and as a preliminary to setting aside a permit illegally granted, Id., 142 A. 545, 6 N. J. Misc. R. 694. See, also, Stokes v. Jenkins, 107 N. J. Eq. 318, 152 A. 383, and cases cited.

We proceed then, to the merits. The ordinance of May 2, 1929, provides that "no public garage * * * shall be hereafter erected, and no material alterations or additions to any public garage * * * shall be hereafter made, within the following described limits: (specifying limits including the garage in question and lands of the prosecutors) provided however, that application for a permit to erect a public or private garage and application for a permit to make material...