On rule to show cause why peremptory writ of mandamus should not issue.
For the relator, Endicott & Endicott.
For the respondents, M. Joseph Greenblatt.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Relator prays for a peremptory mandamus, directing the defendant municipality and its building inspector to issue a permit for the erection of a gasoline service station on premises situate within the township, at the intersection of Landis and Myrtle avenues.
There is a dwelling house upon the lands, located seventy-five feet from the southerly line of Landis avenue, the common building line established in accordance with what seems to be a neighborhood development scheme. The titleholder, one Emmeluth, contracted to sell the "lawn" on the Landis avenue side of the property to relator, conditioned upon the procurement of a permit for the erection of a service station of the character mentioned; and, proceeding on the assumption that the clerk was empowered to grant such permits, the latter thereupon, on June 17th, 1936, applied to that officer for the permit. Concededly, there was no written application signed by relator. An oral application made by the latter's representative was reduced to writing by the clerk on one of the forms customarily used for the purpose, but it was not signed on behalf of relator, nor was the signature of its representative appended thereto. The clerk did not issue the permit, although he and relator's representative seemed to regard the writing so made by the clerk as the equivalent of a permit. His non-action is of no consequence for, as will presently appear, he was not vested with the requisite authority; nor were the prerequisites to the issuance of such permit met by relator.
The existent municipal building code, established by ordinance, created the office of "building inspector," and provided, inter alia, that no building or structure should be erected, altered or "raised" without a permit from the building inspector; and that the application for such a permit should "be in writing and be signed by the owner and contractor," and set forth "(a) the streets or roads upon which it is proposed to construct such building * * *, and statement of the locality; (b) the distance from the side of the streets or roads to the outer or front wall of such proposed building; (c) a
statement of the materials to be used;" and shall be accompanied (d) "by a plan and specifications of the proposed building * * *." It then went on to provide that "if such application shall show that the proposed building is properly located and in accordance with the laws of the State of New Jersey and the provisions of this and other ordinances of said Township, the Inspector shall grant a permit for the said construction," provided the prescribed fees shall have been paid.
We need not recite the several requirements of this particular ordinance designed in the main to secure the public safety. It suffices to say that the responsibility for the observance of these and the pertinent provisions of other ordinances was placed upon the building inspector.
The application was concededly deficient in all these particulars, unless requirements (a), (b) and (c) were met by accompanying plans and specifications. It was not in writing. As pointed out, relator's representative had no intention of complying with this provision of the ordinance; he considered the document prepared by the clerk -- in form an application merely -- as a permit issued in response to his oral request.
The claim that the evidence establishes the submission, with the oral application so made, of plans and specifications is utterly devoid of substantial basis. There is not even a scintilla of evidence of the filing or exhibition of specifications. Nor have such been incorporated in the state of the case. It is pertinent to observe that there had been no award of a construction contract. As to the plans, relator's representative testified that what he submitted to the clerk (the latter denied that anything in the nature of a plan was presented to him) was a mere "preliminary plan, as complete survey of property had not been" made, and that the final plan -- a blue-print -- was submitted not to the ...