Citation Numbers: 98 N.J.L. 600
Judges: Gummere
Filed Date: 7/31/1923
Status: Precedential
Modified Date: 9/9/2022
The opinion of the court was delivered by
The relator, Catherine D. Vernon, is the owner of a three-story brick residence, located at the comer of Kimball avenue and Elm street,, in the town of Westfield. Prior to its purchase by her it was occupied by a single family. After she became seized of the title to the property she applied to the building inspector of Westfield for a certificate permitting the residence to be occupied and used by two families. Her request was refused, and she applied to this court for and was allowed an alternative writ of mandamus, commanding the mayor and council of Westfield and the building inspector of that town to forthwith issue a certificate of occupancy to her, permitting the occupation and use of the said residence by two families, or to show cause to the contrary thereof.
The question for decision under the pleadings is whether the facts set out in the return justify the refusal of the relator’s application for a certificate of occupancy, permitting the use of her dwelling by'two families.
The ordinance appealed to is sought to be justified upon the ground that it is authorized by chapter 240 of the laws of 1920 (Pamph. L., p. 455), which confers upon municipalities poorer to regulate the location and use of buildings — including residences — for the purpose of promoting the public health, safety and general welfare. It will be observed that this statutory power is a limited one, and does not authorize municipalities to restrict the use of residential properties, unless such restriction is reasonably necessary for the carrying out of the declared legislative purpose. It follows therefore that where a municipality attempts to regulate the use of such properties by restrictions which have no tendency to produce the results indicated by the legislature, such municipal action is purely arbitrary; not authorized by the act of 1920, and, consequently, null and void.
Is the provision of the ordinance, under which the inspector’s refusal to issue the certificate of occupancy is sought to be justified, an exercise of the power conferred by the statute, or is it one beyond the power of the municipality to ordain ?
It will be so ordered.