268 U.S. 646 (1925), 350, New York ex Rel. Rosevale Realty Co. v. Kleinert

Docket Nº:No. 350
Citation:268 U.S. 646, 45 S.Ct. 618, 69 L.Ed. 1135
Party Name:New York ex Rel. Rosevale Realty Co. v. Kleinert
Case Date:June 08, 1925
Court:United States Supreme Court

Page 646

268 U.S. 646 (1925)

45 S.Ct. 618, 69 L.Ed. 1135

New York ex Rel. Rosevale Realty Co.



No. 350

United States Supreme Court

June 8, 1925

Argued April 29, 1925




Under a law authorizing an administrative board to regulate the height, spacing, etc., of buildings thereafter erected in a city, and

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for such purposes to divide the city into districts and to change the districts from time to time after notice and hearing, a lot on which plaintiff had planned to build was transferred. to a district of greater restrictions incompatible with the plan, and permission was denied for that reason.


(1) That a judgment refusing relief by mandamus was not reviewable by this Court upon he question whether the substantial provisions of the regulations deprived the plaintiff of his property in violation of the Fourteenth Amendment, the federal question raised in the state court having been limited to the constitutionality of the transfer from the district of lesser to that of greater restriction. P. 650.

(2) That the latter question was not open here, not having been raised by assignments of error nor specified in the brief as required by Rule 21, par. 2, cl.(2). P. 651.

Writ of Error to 237 N.Y. 580; 206 A.D. 712, 207 id. 828, dismissed.

Error to a judgment of the Supreme Court of New York entered on affirmance and remittitur by the court of appeals, denying a petition for a writ of mandamus.

SANFORD, J., lead opinion

MR. JUSTICE SANFORD delivered the opinion of the Court.

The Rosevale Realty Company, the relator herein, filed its petition in the Supreme Court of New York for a peremptory mandamus directing Kleinert, as Superintendent of the Bureau of Buildings, to approve its plans

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for an apartment house and grant it a permit to erect the same. On final hearing, the Supreme Court entered an order denying this petition. This was affirmed by the Appellate Division and by the Court of Appeals. 206 A.D. 712 and 207 A.D. 828, 237 N.Y. 580. The record was remitted to the Supreme Court, to which this writ of error was directed. Hodges v. Snyder, 261 U.S. 600, 601.

By an Act amending the charter of Greater New York, the Board of Estimate and Apportionment was given power to regulate the height and bulk of buildings thereafter erected, the area of courts and other open spaces, and the location of buildings designed for specific uses; to divide the city into districts for such purposes, and to change such districts from time to time, after public notice and hearing. New York Laws, 1916, c. 497, p. 1320. In July, 1916, the Board adopted a "Building Zone Resolution," or ordinance, dividing the city into various classes of use, height, and area districts.1 In the several classes of area districts, [45 S.Ct. 619] which were designated A, B, C, etc., the required open spaces on each lot were progressively increased and the available building space correspondingly decreased. This resolution also provided that the Board might from time to time change the districts, either on its own motion or on petition.

In the Spring of 1922, the relator acquired a plot of ground in the Borough of Brooklyn, then in a C area district. It was also in a residential section known as Midwood Manor, in which, under private restrictive covenants contained in the deeds, no buildings except detached dwelling houses could be erected before January 1, 1923. Disregarding these restrictive covenants, the relator procured plans for a 40-family apartment house, conforming as to open spaces, etc., to the requirements of a C area

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district. It filed these plans with the Superintendent of the Bureau of Buildings on September 1, 1922, for the purpose of having them approved and obtaining a building permit.2 The...

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