Levy v. Mravlag

• Decision Date: 01 November 1921
• Citation: 115 A. 350
• Parties: LEVY et al. v. MRAVLAG, Mayor of City of Elizabeth, et al.
• Court: New Jersey Supreme Court

115 A. 350

LEVY et al.

v. MRAVLAG, Mayor of City of Elizabeth, et al.

Supreme Court of New Jersey.

Nov. 1, 1921.

(Syllabus by the Court.)

Certiorari by Barnard Levy and another against Victor Mravlag, Mayor of the City of Elizabeth, and the Board of Public Works and the Building Inspector of such City, to review an ordinance adopted by the Board of Public Works. Ordinance held invalid and set aside.

Argued before Justice BERGEN, sitting alone pursuant to the statute.

Charles Wagner, of Elizabeth, for prosecutors.

Joseph T. Hague, of Elizabeth, for defendants.

BERGEN, J. The prosecutors were allowed a writ of certiorari to review an ordinance adopted by the board of public works of the city of Elizabeth. The return to the writ shows that the prosecutors filed an application for a permit to erect a building, to be used for a mercantile business, which, the stipulated facts show, was refused by the building inspector solely because it did not comply with the ordinance. The stipulated facts are that the application for permission to erect the building conforms to the requirements of the ordinance of the city of Elizabeth constituting the building code, with the exception that it was not consented to by the signature of property holders as required by the ordinance under review, that the application for the permit was refused by the building inspector of the city of Elizabeth because of the absence of the signature required by the ordinance, and that, aside from this requirement, the application for the permit was correct, and except for the ordinance referred to would have been granted. Thus the sole question presented to me is whether this ordinance, which is the only obstacle to the granting of the desired permit, is a valid ordinance. The proceeding in this case follows that taken to review a similar ordinance in Romar-Realty Co. v. Board of Commissioners, 111 Atl. 248. The first section of the disputed ordinance provides that no permit shall be granted for the erection or alteration of any structure to be used, inter alia, "for the sale at retail or wholesale of goods," which "is intended to be erected or established within 500 feet, in any direction, along any street or avenue where three-fourths of the property on both sides is used, or intended for use, for residence purposes, except there be filed with the superintendent of buildings, accompanying the application for the permit for the building in question, * * * written consents to the intended use signed by those representing the owners of three-fourths of the property used, or intended for use, for residence purposes, within the 500-foot distance above specified."

The second section provides that a violator of the ordinance shall upon conviction pay the penalty which is fixed by it. This ordinance is not in conformity with...