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Conaway v. City of Atlantic City and Pacific Garage Co.

Decided: March 13, 1931.


On certiorari.

For the prosecutors, Cole & Cole.

For the defendants, Joseph B. Perskie.

Before Justices Parker, Campbell and Bodine.


The opinion of the court was delivered by

PARKER, J. The question to be decided is the legality of a permit purporting to have been granted July 7th, 1930, by J.A. Paxson, acting mayor, as director of public affairs, and to permit the Pacific Garage Company "to erect two (2) story addition to present garage as per plans & spcf" (specifications) in accordance with the specifications and plans filed with the building department * * *," at 1715-1717 Pacific avenue, Atlantic City, east of Indiana avenue.

Besides the zoning legislation of 1928 (Pamph. L., p. 696), two local ordinances bear upon the situation. That first in

point of time is an ordinance of May 2d, 1929; the other is the zoning ordinance of November 29th, 1929, which contains a proviso that where it "imposes a greater restriction upon the use of buildings * * * than * * * required by * * * existing provisions of law or ordinance * * * the provisions of this ordinance shall control."

The prosecutors are owners of real estate in the immediate vicinity of the garage in question. Prosecutor Conaway owns the nearest street corner in the same block, thirty or forty feet away; prosecutor Andrews, the nearest corner on the next block; prosecutor Somers, on Indiana avenue near Pacific avenue, farther away than the others, but in the same general territory. It is objected at the outset that none of them, as a mere neighbor, has any status to question the legality of the permit; but in this we cannot concur. One of the fundamental theories of a zoning ordinance is to place all owners in a zone on the same footing and avoid invidious distinctions. Hence each of such owners would seem to have a lively interest in seeing to it that the others obey the rules and that the authorities act according to the powers conferred on them and not beyond them. That interest is expressly recognized in the act of 1928, for example in requiring advertisement and public hearings preliminary to adopting any ordinance; in requiring that regulations shall be made with a view of conserving the value of property, and encouraging the most appropriate use of land (section 5); and in conferring upon the owners of lots included in any proposed change or of lands within one hundred feet to the rear or front (excluding the street) a veto power by a twenty per cent. protest, such veto to be overcome (section 8) only by a three-fourths vote of the municipal body. Such interest is further recognized by the provision in section 9 relating to appeals to the board of adjustment (page 700), that notice must be given to all property owners within two hundred feet of the property to be affected by the appeal. The very scheme of the statute connotes a neighborhood interest in the enactment and enforcement of a zoning ordinance. How

widely that interest extends need not be here decided. It is clear that Conaway has such an interest, and perhaps both of the others also. The point was directly decided by this court in Gaston v. Ackerman, 142 A. 546; 6 N.J. Mis. R. 696, on motion to vacate an allocatur, and as a preliminary to setting aside a permit illegally granted. Gaston v. Ackerman, 6 N.J. Mis. R. 694; 142 A. 545. See, also, Stokes v. Jenkins, 107 N.J. Eq. 318, and cases cited.

We proceed, then, to the merits. The ordinance of May 2d, 1929, provides that "no public garage * * * shall be hereafter erected, and no material alterations or additions to any public garage * * * shall be hereafter made, within the following described limits: (specifying limits including the garage in question and lands of the prosecutors) provided, however, that application for a permit to erect a public or private garage and application for a permit to make material alterations or addition to any public garage, oil station, or private garage within the limits aforesaid may be made by filing with the superintendent of buildings detailed plans and specifications therefor; whereupon the said superintendent shall present the same to the director of the department of public affairs, who shall be and is hereby vested with the power and authority to issue a permit authorizing the erection or the material alteration or addition of or to either a public or private garage within the said restricted territory." There is a further proviso requiring a finding by the director that the proposed work when completed will not be detrimental to public health or safety, or from the standpoint of fire hazard. We need not go into detail as respects this ordinance as we shall assume for present purposes without deciding, that the acting director complied with its terms in granting the ...

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