On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
This appeal is from a judgment in the Law Division of the Superior Court setting aside the provisions of the building code of the defendant township in so far as they require the respondent to reconstruct its existing structure. It also ordered the building inspector forthwith to issue a building permit for the construction of an addition in accordance with the respondent's plans and specifications. The case was certified here on our own motion.
The Mt. Zion Baptist Church is the owner of a parcel of land fifty by one hundred feet in the appellant township. For about twenty years there has been a church building on this land, the existing structure being thirty feet wide and forty-two feet long and having eight-inch walls of cinder block construction.
The church is located in a fire zone. The area is undergoing industrial development but at present there are no
industrial establishments in the immediate vicinity of the church. It is conceded, however, that the establishment of the fire zone in this area is proper.
In May, 1947, respondent applied for a building permit to allow it to construct an addition to the church. This was refused. Thereafter, the township adopted an ordinance providing a building code which, amongst other things, established the fire zone in which the church is located. Section 7 of the ordinance provided in part as follows:
"Section 7. Within the fire limits no building or structure shall be enlarged or extended on any side unless said building shall be reconstructed to conform with the requirements of this ordinance for new construction."
The code also provided that masonry bearing walls of the height of the present church building should be twelve inches thick and that "no cellar or part or portion of any building or structure beneath the level of the street shall be constructed or altered to be used for living, eating or sleeping purposes or as a place of public assembly."
Subsequent to the passage of the ordinance, respondent again filed plans to construct an addition eighteen feet long and thirty-six feet wide on the rear of the existing building. The permit was refused by the building inspector on the ground it did not comply with the building code in that, while the construction of the addition itself complied with all the provisions for new construction, the plans did not include a reconstruction of the existing building to increase the thickness of its exterior walls from eight to twelve inches.
The church brought this action to set aside the provisions of the ordinance, in so far as they purport to prohibit the construction of the addition, and to compel the issuance of the permit. The township justified its refusal to issue the permit on the ground that the plans filed by respondent did not include the widening of the already existing exterior walls. At the hearing appellants made further objection to the plans on the ground ...