Hendey v. Ackerman

• Decision Date: 24 March 1927
• Docket Number: No. 270.,270.
• Citation: 136 A. 733
• Parties: HENDEY v. ACKERMAN, Supervisor of Bureau of Buildings, et al.
• Court: New Jersey Supreme Court

136 A. 733

HENDEY

v. ACKERMAN, Supervisor of Bureau of Buildings, et al.

No. 270.

Supreme Court of New Jersey.

March 24, 1927.

Certiorari by Frederick H. Hendey to review proceedings by the Board of Adjustment of the city of Passaic approving issuance of building permit to Louis Kessler on appeal from decision of Frank L Ackerman, Supervisor of the Bureau of Buildings. Proceedings set aside.

Argued January term, 1927, before PARKER, BLACK, and CAMPBELL, JJ.

Weinberger & Weinberger, of Passaic, for prosecutor.

Feder & Rinzler, of Passaic, for respondent Kessler.

CAMPBELL, J. The respondent, Kessler, made application to the supervisor of buildings of the city of Passaic for a permit to erect a one-story building on premises known as 54 and 56 Prospect street. Such building was to be used as a place in which to manufacture women's dresses. There may be some question as to when this application was made. The application returned under this writ bears date July 6, 1926. On July 13, 1926, the supervisor of buildings refused to issue the permit. His refusal was in writing, addressed to Kessler, as follows:

"Your application for building permit is hereby refused, for the reason that the plans, as drawn, do not conform to the requirements of the city ordinances, as follows:

"(1) The location does not permit the erection of a structure of the classification above mentioned.

"(2) Yards and courts do not conform to the requirements of the city ordinance for light and ventilation.

"(3) Class of construction does not conform to the requirements of the building ordinance.

"(4) Plans do not conform to requirements as to walls, floors or roof."

An appeal from this finding and refusal is said to have been taken to the board of adjustment.

From the minutes of the board of adjustment the following appears:

On July 5, 1926, Joseph Feder, attorney for Kessler, requested information as to the appeal of Kessler and was advised that there was nothing before the board, but the chairman of the board ruled that "in order that Mr. Feder's client might not be held up an informal appeal would be accepted." A written appeal was then prepared and the chairman appointed three members of the board as a committee of inspection.

July 15, 1926, the appeal was considered. Mr. Feder (attorney for Kessler) states that a part of the plot was in a business district. "Mr. King, chairman of the committee on inspection, reported that he had been unable to make inspection and suggested that the matter be postponed. As there were no objectors and the map showed this property connecting with business property on Exchange Place, on a motion made by Mr. King, seconded by Mr. Orre, the appeal was approved."

On September 13, 1926, a communication from the city commissioners was read requesting a reconsideration of the appeal. A petition from property owners, in the neighborhood, objecting to the granting of the permit, was also read. A motion to reconsider was made and seconded, and the chairman of the board refused to entertain it. The city attorney advised the board that it would be legal to rehear the appeal, as new evidence was to be introduced. The chairman of the board directed that the matter be adjourned for one week.

On September 20, 1926, the matter was again taken up, and upon being informed that a rule to show cause had been allowed why a mandamus should not issue compelling the supervisor of buildings to issue the permit, no further proceedings were taken upon the appeal.

The mandamus proceeding, just referred to, was cause No. 255, October, 1926. term of this court. The rule to show cause therein was allowed September 20, 1926. The present writ of certiorari is dated November 5, 1926, and brings up for review the proceedings upon appeal, before referred to, had before the board of adjustment. A consideration and determination in the mandamus proceeding has been withheld and postponed until a hearing and disposition of these proceedings on certiorari.

At the outset it will be well to dispose of an objection, rather strenuously urged, by the respondent, that the prosecutor is not entitled to have a review of these proceedings upon appeal because the allowance of the writ of certiorari was untimely.

It is urged that when the allocator to the present writ was awarded on November 5, 1926, more than 30 days having elapsed since the finding of the board of adjustment on July 15, 1926, the following provision of P. L. 1925, p. 177, § 7, subd. 3, prohibited such allowance, namely:

"No writ of certiorari to review any decision of the board of adjustment shall issue unless application therefor be made within thirty days after the filing of the decision in the office of the board."

At the time of these proceedings, section 2, P. L. 1926, p. 526, and not section 7, subd. 3, P. L. 1925, p. 177, supra, was applicable, but this is of no particular consequence.

Section 7, P. L. 1925, p. 178, provides:

"The board of adjustment shall fix a reasonable time for the hearing of the appeal, giving due notice to the parties in interest."

It is admitted that no notice of any...