Ignaciunas v. Risley

• Citation: 121 A. 783
• Parties: IGNACIUNAS v. RISLEY, Inspector of Buildings of Town of Nutley in Essex County, et al.
• Decision Date: 15 August 1923
• Court: United States State Supreme Court (New Jersey)

121 A. 783

IGNACIUNAS

v. RISLEY, Inspector of Buildings of Town of Nutley in Essex County, et al.

Supreme Court of New Jersey.

Aug. 15, 1923.

(Syllabus by the Court.)

Mandamus by the State, on the relation of Kallktas Ignaciunas, against Warner I. Risr ley, Inspector of Buildings of the Town of Nutley, in the County of Essex, and another. Writ awarded.

Argued December, 1922, before KALISCH, BLACK, and KATZENBACH, JJ.

Whiting & Moore, of Newark, for relator.

William P. Hurley, of Newark, and Edward M. Basset, of New York City, for defendants.

KATZENBACH, J. This is an application for a writ of mandamus to compel the inspector of buildings of the town of Nutley to issue a permit to the relator for the construction of a dwelling and store property on a tract of land owned by him, located at the southeast corner of Conover avenue and Yale street, in Nutley. The relator acquired the property on June 15, 1922. There are no covenants or restrictions in the relator's deed forbidding the erection of a dwelling and store building upon the property. On March 28, 1922, the board of commissioners of Nutley passed a comprehensive zoning ordinance and included the relator's tract of land within what is termed in the ordinance "Residence B district." The provisions of the ordinance relating to Residence B district are as follows:

"Within any Residence B district as indicated on the Building Zone map, no building or premises shall be used for other than one or more of the following three specified purposes:

"(1) Any use hereinbefore specified as permitted in Residence A districts.

"(2) A dwelling, detached or semidetached, for not more than two families or two housekeeping units.

"(3) An orphanage, old people's home, charitable institution not of a correctional nature, dispensary, sanitarium, nursing home, dormitory, convent, boarding or lodging house or boarding school; providing there is no advertising on or visible from the exterior of the premises."

These provisions prohibit the erection of the store and dwelling upon the relator's land which he desires to build. It is admitted that the plans and specifications of the proposed building comply with the Building Code of Nutley, and that the only grounds for the refusal of the inspector of buildings to issue a permit were that the proposed building is to be used as a store and is to be located within 20 feet of the front property line of the lot The location of the proposed building on the lot has been waived by the defendants, which leaves for consideration the sole question as to whether a building permit can be withheld because the premises, when erected, are to be used as a store.

The defendants justify their refusal to issue a permit upon the ground that the state has by legislation delegated to municipalities the exercise of its police power, and that the provisions of the zoning ordinance referred to are a proper exercise of the police power in the interest of the public health safety, and welfare. The acts of the Legislature which purport to grant to municipalities the power to enact, by ordinance, the provisions in question, are a supplement to an act entitled "An act concerning municipalities," approved March 27, 1917, approved April 20, 1920 (chapter 240 of the Laws of 1920), and a supplement to said supplement approved March 22, 1921 (chapter 82 of the Laws of 1921). The 1921 act which was amended by chapter 234 of the Laws of 1922 gives the governing body of each municipality power by ordinance to regulate and limit the height, number of stores, and bulk of buildings, hereafter erected, and to regulate and determine the area of yards, courts, and other open spaces, and for said purposes to divide the municipality into districts. The 1920 act gives the power to each municipality by ordinance "to regulate and restrict the location thereafter of trades and industries and the subsequent location of buildings designed for a specified use in any designated area, and may divide the municipality into districts of such number, shape and area as it may deem best suited to carry out the purposes of this act. For each such district regulations may be imposed designating the trades and industries that shall be excluded or subjected to special regulations and designating the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare." Section 1. It is the provisions of the 1920 act upon which the defendants rely in this case. To us it seems doubtful if the ordinance so far as it relates to the question at issue is within the powers delegated by the state to the municipality. The delegation of power is to regulate and restrict the location of trades and industries and the subsequent location of buildings designed for a specified use in any designated area. By the exercise of this power of regulation and restriction the municipality has sought by the ordinance to prohibit the erection and use of a store for retail purposes in a large area of Nutley. A right to "regulate and control" the driving of cattle in streets does not give power to prevent it altogether. McConvill v. Jersey City, 39 N. 1. Law, 38. An ordinance providing that no telephone wires shall be stretched across the public street without consent of the township committee is not a regulation or restriction within the meaning of a law providing that telephone companies may use streets subject to such regulations and restrictions as the corporation authorities may impose. Summit v. N. Y. & N. J. Tele. Co., 57 N. J. Eq. 123, 41 Atl. 146. Where a park commission is authorized by a Legislature to enact rules for protecting, regulating, and controlling highways, it has not the power to prohibit all traffic. Barnes v. Essex County Park Commission, 86 N. J. Law, 141, 91 Atl. 1019. It is unnecessary, however, to hold that the board of commissioners of Nutley exceeded the power delegated to them by the Legislature in prohibiting stores in the district in which the relator's property is located,' for the reason that we are of the opinion that the ordinance, in so far as it prohibits the relator from erecting on his property a store, is void as violative of the rights of private property guaranteed to the relator by the federal and state Constitutions.

Article 1 of section 16, and article 4, § 8, of the state Constitution, provide that private property shall not be taken for public use without just compensation. Section 1 of the Fourteenth Amendment to the federal Constitution provides that no state shall deprive any...