Schait v. Senior

• Court: New Jersey Supreme Court
• Writing for the Court: TRENCHARD, J.
• Citation: Schait v. Senior, 97 N.J.L. 390, 117 A. 517 (N.J. 1922)
• Decision Date: 19 June 1922
• Docket Number: 225
• Parties: FRANK SCHAIT, RELATOR, v. WILLIAM H. SENIOR, BUILDING INSPECTOR OF THE TOWN OF MONTCLAIR, ET AL., RESPONDENTS

117 A. 517

SCHAIT.

v. SENIOR, Building Inspector, et al.

No. 225.

Supreme Court of New Jersey.

June 19, 1922.

(Syllabus by the Court.)

Application of Frank Schait for a writ of mandamus against William H. Senior, Building Inspector of the Town of Montclair and others. On rule to show cause. Application for mandamus denied, and rule discharged.

Argued February term, 1922, before TRENCHARD, BERGEN, and MINTURN, JJ.

Thomas Brunetto, of Newark, for relator.

Walter E. Marsden, of Montclair, and Theodore J. Badgley, of Newark, for respondents.

TRENCHARD, J. This is a rule to show cause why a mandamus should not issue commanding the building inspector of the town of Montclair and the town of Montclair, or either of them, to issue a permit to the relator to erect a garage on a lot owned by him. The building inspector refused the permit for the reason that the building in question was prohibited by section 14 of the Montclair Zoning Ordinance approved May 19, 1921. We are of the opinion that such refusal was right.

The relator contends that the Home Rule Act of 1917 (P. L. p. 319) as supplemented by chapter 240 of Laws of 1920 (P. L. p. 455), pursuant to which the ordinance was avowedly enacted, is unconstitutional, as depriving the relator of his property without compensation. To this it is sufficient for present purposes to say that the act authorizes a town, in the exercise of its police power, to enact a zoning ordinance to promote the public health, safety, and general welfare, and in that respect and to that extent is constitutional. Cliffside Park Realty Co. v. Cliffside Park (Err. & App.) 114 Atl. 797.

It is next said that section 14 of the zoning ordinance in question, which in effect prohibited the relator's building, goes beyond the power conferred by the statute. We think it does not. Section 14 reads:

"Section XIV. Special Regulations Relative to Oarages and Service Stations. Under no circumstances shall a permit be issued, for the erection or enlargement of a garage for more than five motor vehicles, a group of garages for more than five motor vehicles, or for a motor vehicle service station or for the conversion of any premises not so used to be used for such purposes, in any zone, whether it be a business zone or an industrial zone, if any part of the lot or plot in question is situated within a radius of two hundred feet of, or within any portion of a street between two intersecting streets in which portion there exists:

"1. A public school;

"2. A duly organized school, other than a public school, conducted for children under sixteen years of age and giving regular instruction at least five days a week for eight or more months a year;

"3. A hospital, maintained as a charitable institution;

"4. A church;

"5. A theatre containing at least 300 seats;

"6. A public library; or "7. A public art museum."

The relator's application was for a permit to erect on his lot on Bellevue avenue a building to be divided by partitions into 12 individual garages, each designed for one automobile. The lot upon which it was to be erected was less than 200 feet from a church, and also was within that portion of Bellevue avenue between two intersecting streets upon which there is a public library. The provision of the ordinance prohibiting the granting of the permit in such circumstances is a reasonable regulation touching public health, safety, and general welfare, and is within the scope of the police power of the town, and is consequently valid. Ninth Street Improvement Co. v. Ocean City, 90 N. J. Law, 106, 100 Atl. 568, affirm...