State, ex rel. Evans v. Williams , 8 N.J. Misc. 16 ( 1929 )

Per Curiam.

This is an application for a writ of mandamus to compel the issuance of a certificate of occupancy permitting the use by two families of a dwelling at 145 West Fifth avenue, Roselle. The property has a frontage of seventy-five feet on West Fifth avenue and a depth of two hundred feet. Upon the property is a two-story and attic frame house recently remodeled so as to provide accommodation for two families.

Roselle has a zoning ordinance pursuant to the constitution of the state and chapter 274 of the laws of 1928. Under this ordinance relator’s property is in a zone where occupancy by two families is forbidden. A similar ordinance was in existence when he purchased the property in 1927.

An appeal from the action of the building inspector in refusing to issue a certificate of occupancy was taken to the board of adjustment, who upheld his action.

There is nothing in the record to rebut the presumption that the ordinance is a reasonable exercise of the police power. Oxford Construction Co. v. Orange, 103 N. J. L. 355. A variance between the title and body of an ordinance does not affect its validity. Hershoff v. Beverly, 45 N. J. L. 288; Loertscher v. Jersey City, 84 Id. 537.

Mandamus is a discretionary writ. Koplin v. South Orange, 6 N. J. Mis. R. 489; affirmed, 7 N. J. Adv. R. 348. The application will be denied.