Sonntag v. Schmidt

Pee Curiam.

This matter comes before the court on a rule to show cause why a writ of mandamus should not issue directing the defendants to issue a building permit to the relator for the erection of an addition to an existing building on the relator’s property on Union avenue, in,the town, of Irvington, which permit was refused on the ground that the use contemplated for the building is a violation of the local zoning ordinance restricting the properly in question against business buildings. By stipulation and otherwise, it appears that the relator is the owner of a lot on the east side of Union avenue, in the town of Irvington, about ninety-eight feet north of Mt. Yernon avenue, having a frontage of about forty-eight feet on Union avenue and a depth of about two hundred and eightv-five feet, on which is situate the house where relator lives. In the rear of his house is a garage building to which *960 relator proposed to erect an addition five feet by seven feet to be used by him to bottle milk and to wash milk bottles. The local zoning ordinance, places the premises in a “B” residence zone. Belator applied for a permit to erect the addition to the assistant building superintendent of the town of Irvington on January 9th, 1925. The application was in proper form, the fees were tendered and the same complied in all respects with the building code, but was rejected and a permit refused solely on account of the zoning ordinance. This refusal we think was unlawful, under the authority of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 2 N. J. Adv. R. 853.

The contention now is that the bottling of milk and washing of milk bottles on the premises is injurious to the health, safety or general welfare of the public of the town of Irving-ton. With respect to this contention it is worthy of remark that the assistant building superintendent (the official who dealt with this application and, admittedly, had authority to deal with it) testified, in effect, that he did not refuse it because he regarded the business injurious to health, safety or general welfare, and, in fact, he considered that it was not. He refused it because the ordinance zoned the premises against, business.

'Looking at the evidence laid before us we see nothing to establish the contention of the defendants, and we certainly cannot assume that the business in question, if lawfully conducted, will be injurious to health, safety or general welfare.

A peremptory writ of mandamus will be awarded. If defendants desire to appeal, an application for an order for the moulding of the pleadings will be entertained.