Plymouth Co. v. Bigelow

• Decision Date: 22 July 1924
• Citation: 129 A. 203
• Parties: PLYMOUTH CO. v. BIGELOW, Superintendent of Buildings.
• Court: New Jersey Supreme Court

129 A. 203

PLYMOUTH CO.

v. BIGELOW, Superintendent of Buildings.

Supreme Court of New Jersey.

July 22, 1924.

Mandamus by the State of New Jersey, at the relation of the Plymouth Company, against Frederic Bigelow, Superintendent of Buildings of the City of Newark. Writ allowed.

Argued June term, 1924, before KALISCH, BLACK, and CAMPBELL, JJ.

Spaulding Frazer, of Newark, for relator.

Charles M. Myers, of Newark, for defendant.

PER CURIAM. The facts agreed upon between the counsel of the respective parties, and on which the relator bases his right to a peremptory writ of mandamus to be directed to Frederic Bigelow, superintendent of buildings of the city of Newark, commanding him to issue a permit to the relator for the erection of a four-story apartment house and store building on land owned by the relator on South Orange avenue in Newark, N. J., are as follows:

(1) The Plymouth Company, the relator, is the owner of premises known as Nos. 1076-1086 South Orange avenue, Newark, N. J.

(2) That on or about May 28, 1924, application was made on behalf of the Plymouth Company to Frederic Bigelow, superintendent of buildings of the city of Newark, for a permit to erect a four-story apartment house and store building at premises 1076-1086 South Orange avenue, Newark, N. J.

(3) That the plans and specifications so submitted complied with the provisions of the building code and ordinances of the city of Newark and other ordinances relating to the material and manner of construction of buildings of the type for which permit was applied.

(4) That said Frederic Bigelow, superintendent of buildings as aforesaid, refused to grant a permit to said relator for such a building.

(5) That the reason for the refusal of said Frederic Bigelow to grant said permit was that an ordinance of the city of Newark, commonly known as the zoning ordinance, prohibited the carrying on of business upon the portion of South Orange avenue for which said permit was asked; such portion of South Orange avenue being what is known as a residence zone.

(6) The zoning ordinance of the city of Newark prohibits in residence districts buildings exceeding 35 feet in height, and has certain requirements as to the area which may be covered by buildings. These provisions are violated by the proposed building, which is four stories in height, and substantially more than 35 feet, and which covers a greater space than is permitted in residence districts.

(7) The type of building proposed to...