Max v. Saul
| Decision Date | 26 February 1925 |
| Citation | 127 A. 785 |
| Parties | MAX v. SAUL, City Building Inspector. |
| Court | New Jersey Supreme Court |
Mandamus by the State, on the relation of Harry Max, against John Saul, Building Inspector of the City of Jersey City. On rule to show cause. Writ denied and rule dismissed.
Argued October term, 1924, before KALISCH, BLACK, and CAMPBELL, JJ.
Benjamin Dowden and Benjamin J. Darling, both of Jersey City, for relator.
Thomas J. Brogan, of Jersey City, for defendant.
Relator is the owner of lands on the corner of the Boulevard and Claremont avenue in Jersey City, being a tract 47 feet wide in front and rear, and 110 feet deep.
On June 5, 1924, he filed with respondent a written application for a permit to erect a one-story brick garage, 19 feet square, on the rear of his plot. The permit was refused on June 17, 1924, upon the ground that the permit sought was for the erection of a building which would be in violation of section 2, par. 7, of an ordinance regulating and restricting trades and industries, generally known as the "zoning ordinance" of Jersey City; said section and paragraph providing that no garage shall be erected within 10 feet of any private dwelling.
Relator's proposed garage, if erected, would be distant 5 feet from an apartment house on adjoining property.
Relator contends that the ordinance in question cannot be justified as a police regulation as it does not affect the health, safety, and general welfare of the community, and therefore is unconstitutional, depriving him of his property without due process of law, and further that it cannot be justified as a police regulation because it is arbitrary in its application, in that it affects only residential districts and prohibits the erection of a garage within 10 feet of a dwelling, but makes no provision against erecting a dwelling house within 10 feet of a garage.
The situation is not like unto that existing in Ignaciunas v. Risley, 98 N. J. Law, 712, 121 A. 783, or Hayes v. Blank (N. J. Sup.) 126 A. 926.
On the contrary, we are of the opinion that the prohibition in question under the ordinance is quite within the police power of the city in conserving the health, safety, and general welfare of the community.
The writ of mandamus is denied and the rule to show cause is dismissed, with costs.
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