Payne v. Borough of Sea Bright, 203.

• Decision Date: 26 September 1936
• Docket Number: No. 203.,203.
• Citation: 187 A. 627
• Parties: PAYNE v. BOROUGH OF SEA BRIGHT et al.
• Court: New Jersey Supreme Court

187 A. 627

PAYNE

v. BOROUGH OF SEA BRIGHT et al.

No. 203.

Supreme Court of New Jersey.

Sept. 26, 1936.

Petition by John H. Payne against the Borough of Sea Bright and another for a writ of certiorari to review a zoning ordinance, and the conviction of prosecutor for violation of the ordinance. On rule to show cause.

Rule to show cause discharged.

Argued January term, 1936, before PARKER, CASE, and BODINE, JJ.

Kremer & Proctor, of Asbury Park, for prosecutor.

Edward W. Wise, of Red Bank, for defendants.

BODINE, Justice.

This is a rule to show cause why a writ of certiorari should not issue to review (a) the zoning ordinance of the borough of Sea Bright, and (b) the conviction of the prosecutor in the recorder's court on a complaint of violating that ordinance by undertaking to erect a building for restaurant purposes in a district zoned as residential.

The first phase may be disposed of in a few words. The law is thoroughly settled that an ordinance will not be set aside on certiorari as unreasonable, unless it is unreasonable in toto, and that attack on any part of it involving a penalty for disobedience must await a conviction thereunder. Neumann v. Hoboken, 82 N. J.Law, 275, 82 A. 511, and cases cited. (N.B. also later cases citing it.) It is not suggested that this ordinance is unreasonable except as to a section of territory including prosecutor's property. In this aspect the rule must be discharged.

As to phase (b), the ordinance, as customary with ordinances of this class, contemplates application in the first instance to the building inspector, with submission of plans, and appeal by an aggrieved party to the board of adjustment, providing for the procedure in such case. But the present prosecutor admits that he made no such application, but commenced to build, and was stopped by the chief of police, who said he would have to get a permit. He says he "showed the plans" to the building inspector and the mayor, and appeared before the board, who told him he would have to notify the property owners within 500 feet, as required by section 17 (f) of the ordinance. He did not do this, but went on with the work and was then arrested and convicted.

If that conviction had been under the building code for building without a permit, prosecutor would clearly have been out of court. But the complaint makes no such charge. It rests on erection of a business building in a residential zone. In such cases the procedure is well settled. The orderly...