Falco v. Kaltenbach

• Decision Date: 31 March 1925
• Citation: 128 A. 394
• Parties: FALCO et al. v. KALTENBACH, Building Inspector, et al.
• Court: New Jersey Supreme Court

128 A. 394

FALCO et al.

v. KALTENBACH, Building Inspector, et al.

Supreme Court of New Jersey.

March 31, 1925.

Mandamus by Gasper Falco and Salvatore Corsello against William T. Kaltenbach, Building Inspector, and the City of Elizabeth. On rule to show cause. Writ granted.

Argued January term, 1925, before KALISCH, BLACK, and CAMPBELL, JJ.

David S. Feinswog, of Elizabeth, for relators.

Joseph T. Hague, of Elizabeth, for respondents.

PER CURIAM. The stipulated facts are that relators are the owners of land in the city of Elizabeth fronting 34 feet on Monroe avenue and 115 feet in depth along Louisa street, on which there has been for three years a frame dwelling, 2 1/2 stories high, with 2 stores facing Monroe avenue and one facing Louisa street.

Relators acquired said property August 31, 1921, and there are no restrictive covenants in any wise affecting the use of said lands. That said lands are embraced in residence B district of the zoning ordinance of Elizabeth. Since the erection of the building on said premises there has been in said building three stores—a tailor shop and pharmacy on Monroe avenue and a barber shop on Louisa street. On July 11, 1924, relators made application to William T. Kaltenbach, building inspector of the city of Elizabeth, for a permit to add an extension to said building at the rear thereof facing on Louisa street for the purpose of enlarging a store. The said application was in proper form, accompanied by plans and specifications in all respects complying with the regulations of the building departments of the city, and not in conflict with any laws of the state, and a proper fee was tendered for the issuing of the permit. On August 6 the building inspector refused to issue the permit on the ground that the contemplated extension of the building on Louisa street was in violation of the zoning ordinance, the lands being in residence B district in which stores are not permitted. Relators then appealed to the board of adjustment of the city, created under P. L. 1924, p. 324, and that board, after a hearing, affirmed the decision of the building inspector not to issue the permit. Relators then applied for and obtained the present rule to show cause why an alternative or peremptory writ of mandamus should not issue requiring the building inspector to issue the permit as applied for by relators.

In opposition to this rule, counsel for respondents urged two reasons only.

1. Certiorari is the proper remedy to be...