For the relators, Greenburg, Wilensky & Feinberg (Oscar R. Wilensky, of counsel).
For the respondents, Oliver T. Somerville.
Before Justices Bodine and Jacobs.
The opinion of the court was delivered by
JACOBS, J. This matter is before the court on a rule to show cause why a peremptory or alternative writ of mandamus should not issue commanding the building inspector of the Borough of Rutherford to issue a permit for the erection of signs on the buildings located at 41 Park Avenue, Rutherford, and 2 Erie Avenue, Rutherford.
The relator Federal Advertising Corp. leased the right to erect "an advertising structure on the roof of the building known as 41 Park Avenue" from the relator Rutherford Homes, Inc., and similarly leased the right to erect an advertising structure on the roof of the building known as 2 Erie Avenue from the relators Peter and Theodore Kisciras. Thereafter, the relator Federal Advertising Corp. on behalf of itself and the other relators, applied to the respondent building inspector of Rutherford for a permit authorizing
the erection of outdoor signs on the roofs of the aforementioned buildings.
The proposed signs were to be constructed entirely of steel and iron and without any combustible material and drawings of the signs were submitted to the building inspector. Telephone conferences were held between the attorney for the relators and the building inspector and under date of August 7th, 1947, the attorney sent a confirmatory letter setting forth his understanding that the permit would be issued upon the furnishing of "a licensed engineer's report to the effect that the building can adequately support the sign with safety to the public." In acknowledgment of this letter the building inspector advised that, "Upon receipt of a report from a licensed engineer same will be submitted to the Mayor and Council for their approval." This letter further advised that Mr. William G. Ihnen, the licensed engineer who had been retained by the relators, had been to the building inspector's office and had stated that he would submit the required report. After receipt of Mr. Ihnen's report, the building inspector stated that he wanted a report from another engineer. The testimony on behalf of the relators indicates that they submitted the name of another engineer but that they were then told by the building inspector that "it would be useless to submit any further engineering reports because the Mayor and Borough Council had unofficially advised him not to give the permit under any conditions." The building inspector concedes that the Mayor and the Council had no jurisdiction over the applications to him by the relators.
The parties agree that there are no pertinent municipal restrictions, zoning or otherwise, which would prohibit the erection of the advertising signs contemplated by the relators. See O'Mealia Outdoor Advertising Co. v. Rutherford (Supreme Court, 1942), 128 N.J.L. 587, where the court set aside the borough's 1941 ordinance which sought to prohibit the erection of outdoor advertising signs. They further agree that the only pertinent municipal requirement is that embodied in the building code to the effect that any person desiring to erect a sign must obtain a permit from the building inspector. The code provides that every application for
such permit must give a "full detailed statement of the specifications, for said work," and that the permit should issue "without unnecessary delay in all cases where the drawings and detailed statement of specifications" comply with the code. Respondents urge, however, in opposition to the relief sought by relators, that the permit was properly denied under the building code on the ground that the building inspector reasonably found that the proposed signs could not be erected with reasonable safety to the public, and that the relators had not complied with the procedural requirements of the building code relating to the filing of applications embodying details of construction.
The contemplated signs are no different than those usually erected by advertising companies on roofs throughout the state. The president of the relator Federal Advertising Corp. testified that his company now has approximately 200 such signs, that they are entirely safe, and that none of the signs has ever fallen during the past 25 years. Mr. Ihnen, the engineer who had submitted a report on behalf of the relators to the building inspector, testified that signs had formerly been erected on the buildings in question, that the buildings were entirely suitable for the contemplated signs and that they could be erected with "full safety to the public." His testimony was generally supported by the testimony of Richard Haenichen, a licensed civil engineer who has specialized in ...