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Cole v. Dowling

Decided: October 20, 1930.

CHARLES G. COLE, APPELLANT,
v.
THOMAS J. DOWLING, BUILDING INSPECTOR OF THE CITY OF ORANGE, ET AL., RESPONDENTS



On appeal from the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 983.

For the appellant, Arthur F. Egner.

For the respondents, Daniel J. Brennan.

Campbell

The opinion of the court was delivered by

CAMPBELL, J. The respondents Rudnevitz and Ruby, owners of lands on Lincoln avenue, in Orange, applied in December, 1925, to the building inspector of that city for permits for the erection of five proposed apartment houses. This application was refused because apartment houses in that locality were prohibited by a then existing zoning ordinance. On January 2d, 1926, the owners applied for a writ of mandamus to compel the issuance of such permits, referring in such proceedings to four tracts, numbered from one to four, inclusive. Although no plans had been filed with the building inspector for the building proposed to be erected on tract four, counsel for the respective parties stipulated that the same had been filed, for the purpose, it is said, of having the legal question involved determined.

A peremptory writ was directed to be issued May 4th, 1926. Rudnevitz and Ruby v. Dowling, &c., 4 N.J. Mis. R. 483.

Thereafter permits were issued for buildings on tracts one and two. The dates of issue were June 17th, 1926; November 16th, 1926, and June 25th, 1927. All of these buildings have been erected and completed.

Shortly prior to February 8th, 1929, the owners made application to the building inspector for a permit to erect a four-story apartment house on tract four, and such permit was issued on February 9th, 1929, upon advice from the law department of the city that he was required so to do by the mandate of the writ of mandamus.

The prosecutor-appellant then appealed to the board of adjustment and that body, on March 14th, 1929, denied the application to set aside the action of the building inspector basing its decision also upon the ground that the mandate of the peremptory writ of mandamus required the issuance of the permit.

What is known as the zoning amendment to the state constitution was adopted September 20th, 1927, became effective October 18th, 1927, and Pamph. L. 1928, p. 696, adopted for the purpose of making such provision effective in the several municipalities of the state went into effect April 3d, 1928.

All of this took place after the judgment in the mandamus proceedings on May 4th, 1926, and before the issuance of the permit in question on February 8th, 1929.

Under the zoning ordinance existing in Orange at the time the proceedings in mandamus were instituted the lands upon which the proposed buildings were to be erected were in a zone, or district, restricted to dwellings for the residence of one-family or for one housekeeping unit. Since the constitutional amendment and Pamph. L. 1928, p. 696, have become effective, the city of Orange has adopted legislation regulating the set-back of the buildings under which the set-back of the ...


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