Levy v. Mravlag

| N.J. | Nov 1, 1921

The opinion of the court was delivered by

Beegest, J.

The prosecutors were allowed a writ of certiorari to review an ordinance adopted by the board of public works of the city of Elizabeth. The return to the writ shows that the prosecutors filed an application for a permit to erect a building, to be used for a mercantile business which, the stipulated facts show, was refused by the building inspector solely because it did not comply with the ordinance. The stipulated facts are that the application for permission to erect the building conforms to the requirements of the ordinance of the city of Elizabeth constituting the building code, with the exception that it was not consented to by the signature of property holders as required by the ordinance under review; that the application for the permit was refused by the building inspector of the city of Elizabeth because of the absence of the signature required by the ordinance, and that aside from this requirement the application for the permit was correct, and except for the ordinance referred to would have been granted. Thus the sole question presented to me is whether this ordinance, which is the only obstacle to the granting of the desired permit, is a valid ordinance. The proceeding in this ease follows that taken to review a similar ordinance in Romar-Realty Co. v. Board of Commissioners, ante p. 117. The first section of the disputed ordinance provides that no permit shall he granted for the erection or alteration of any structure to be used, inter alia, “for the sale at retail or wholesale of goods,” which “is intended to be erected or established within five hundred feet, in any direction, along any street or avenue where three-fourths of the property on both sides is used, or intended for me, for residence purposes, except there be filed with the superintendent of buildings, accompanying the application for the permit for the building in question, * * * written consents to lire intended use signed by those representing the owners of three-fourths of the property used, or intended for use, for residence purposes, within the five-hundred-foot distance above specified.”

The second section provides that a violator of the ordinance shall upon conviction pay the penalty which is fixed by it. This ordinance is, not in conformity with either of the statutes creating what has been denominated “zoning districts,” as provided in Pamph. L. 1920, p. 436, or Pamph. L. 1920, p. 496, for the reason that the statutory provisions in these acts are not complied with, neither is it within the provisions of the “supplement to an act entitled ‘An act concerning municipalities,’ approved March twenty-seventh, one thousand nine hundred and seventeen.” Pamph. L. 1920, p. 153, and supplement 1921, Pamph. L., p. 132. The statutes referred to provide that the governing body of each municipality to- which they apply shall have power by ordinance to regulate and limit the character of building to he erected and detennine the area of yards, courts and open spaces, and for said purposes, to divide municipalities into districts, and that such regulation shall be uniform as to each class of building throughout any district. The power thus granted to the governing body of each municipality does not authorize the delegation of that power to any body of citizens to determine uniformity of regulations to be applied. Under' this ordinance one person may be prevented from building a certain character of building on a certain street, because three-fourths of the landowners will not consent, while another may have a permit on the same street for exactly the same character of building, for the same use forbidden the other, because the required proportion of landowners within the same area may consent.

I also think this ordinance is unreasonable because the veto power is given to three-fourths of the property owners of property intended for use for resident purposes, for the landowner may change his mind as to the use he intends to put the land to. In addition to what I have said, no> authority is pointed out to me which authorizes the passing of any such ordinance.by the board of public works; that board is not the governing body of the city of Elizabeth, and. therefore, had no authority'to adopt such an ordinance, but, assuming that it had, it 'could not delegate its authority to regulate the erection of buildings to a special class—that is, contiguous property holders, within five hundred feet of the proposed struc■ture. Where the city charter authorized the governing body to select a site for a public building, a resolution appointing commissioners to perform that duty was held defective as an unlawful delegation of authority. State v. Paterson, 34 N. J. L. 163 ; Foster v. Cafe May, 60 Id. 78; Harcourt v. Asbury Park, 60 Id. 158. The regulation of the right of a. landowner to use his own property as he sees fit is not an administrative act but one involving legislative discretion.

There are other reasons why this ordinance is unreasonable, but those expressed are sufficient to demonstrate its invalidity. It cannot be justified upon the ground that it is necessary for public safety, its only effect being to deprive the owner of his property, or the use' thereof, without compensation. This ordinance seems to be an attempt to subject the right of a landowner to use Ms property as lie sees fit to the vote of iliree-fourtlis of the landowners on the same street, within a limited area, not because the proposed use would endanger the public safety or health but for the purpose of beautifying the appearance of a particular portion of a street, and subjects the right of the landowner to the character of the use he would make of Ills land to, a popular vote restricted to au area of live hundred feet in any direction from it.

Por the reasons given the ordinance should he declared invalid and It will lie set aside, with costs.