Priscell v. City of E. Orange

• Decision Date: 08 April 1927
• Docket Number: No. 16.,16.
• Citation: 136 A. 803
• Parties: PRISCELL v. CITY OF EAST ORANGE et al.
• Court: New Jersey Supreme Court

136 A. 803

PRISCELL

v. CITY OF EAST ORANGE et al.

No. 16.

Supreme Court of New Jersey.

April 8, 1927.

Proceeding for writ of mandamus by Margaret Priscell against the City of East Orange and another. On demurrer to return of alternative writ of mandamus. Judgment for defendants.

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

Theodore G. Hindenlang, of Newark, for relator.

Walter C. Ellis, of Newark, for respondents.

PER CURIAM. Relator desires to erect, in disregard of the local zoning ordinance, on the northeast corner of Park avenue and North Sixteenth street, East Orange, a "one-story wholly tile and stucco building for the purpose of an office for gasoline station with a canopy for the pump island." The premises are in the "large volume residence district," which assimilates the case in that particular to Long v. Scott (N. J. Sup.) 133 A. 767, which case, also involving a gasoline station, arose in the same municipality, on the same street, and about half a mile to the westward. The surroundings in the present case are different in some respects, but we learn from a stipulation of facts, which for purposes of this demurrer we treat as part of the record, that the neighborhood is entirely residential except for some half dozen build ings devoted to business purposes in whole or part.

Whatever might be said with respect to a building for ordinary mercantile purposes in this location, the court has been almost uniformly adverse to overriding the local authorities in the case of public garages and gasoline stations, with their attendant fumes, noises, and fire hazard, in districts generally residential. Hench v. East Orange (N. J. Sup.) 130 A. 363. To entitle a party to a mandamus his legal right must be clear; and applying that rule to such a case as this, the zoning ordinance in its application to relator's case must be clearly shown to be unreasonable.

We are not satisfied that it is unreasonable in this case, and this leads to a judgment overruling the demurrer and in favor of the defendants, with costs.