Cooper Lumber Co. v. Dammers

• Decision Date: 02 April 1924
• Citation: 125 A. 325
• Parties: COOPER LUMBER CO. v. DAMMERS, Building Inspector.
• Court: New Jersey Supreme Court

125 A. 325

COOPER LUMBER CO.

v. DAMMERS, Building Inspector.

Supreme Court of New Jersey.

April 2, 1924.

Suit by the Cooper Lumber Company against John Dammers, as Building Inspector of the Borough of Butherford. On rule to show cause why an alternative or peremptory writ of mandamus should not issue. Peremptory writ awarded.

Argued March term, 1924, before KALISCH and KATZENBACH, JJ.

Stanton T. Lawrence, of Butherford, for relator.

John M. Bell, of Rutherford, for respondent.

PER CURIAM. This case is before us on a rule to show cause why an alternative or peremptory writ of mandamus should not issue to John Dammers, building inspector of the borough of Rutherford, directing him to issue to the relator, the Cooper Lumber Company, a permit permitting it to erect certain structures upon its property in the borough of Rutherford, described in these proceedings. The facts are uncontroverted.

The relator is a New Jersey corporation which has been engaged for many years past in the purchase and sale of lumber for building purposes. In August, 1922, it acquired a tract of land on the easterly bank of the Passaic river in Rutherford, having a frontage on the river of 175 feet, and a frontage of 200 feet on the westerly side of Riverside avenue, a street substantially parallel with the Passaic river and distant therefrom approximately 250 feet. This tract has been used by the relator because of its water facilities for receiving from boats rough lumber in large quantities. This lumber is stored upon the property in sheds and in the open until wanted for retail distribution. This property, prior to the relator's acquisition thereof, had been used for 30 years as a yard for storing coal and building materials, and for wharfage purposes. Immediately adjoining this property on the south is another dock used for handling coal. To the south of this lastmentioned dock is another tract of land upon which there are buildings owned and operated by a company engaged in manufacturing. Across the road from this manufacturing concern is a cement block plant. To the north of the relator's tract there is a vacant piece of land located between the westerly side of Riverside avenue and the Passaic river, having a frontage on the river of 100 feet. On February 2, 1923, this tract of land was purchased by the relator with the intention of building a dock and sheds thereon. There is only a single dwelling in the neighborhood, located on the easterly side of Riverside avenue, opposite the cement block plant. The relator purchased the land in question to the north of its original acquisition to extend its plant to meet the increased demands of Rutherford and the other growing communities in the neighborhood for lumber. On April 4, 1922, the borough of Rutherford adopted an ordinance entitled:

"An ordinance to regulate and restrict the location hereafter of trades and industries and the subsequent location of buildings designed for a specified use in any designated area and to regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces and for said purpose to divide the borough of Rutherford into districts."

This ordinance was enacted in pursuance of the provisions of chapter 240 of the Laws of 1920, as amended by chapter 102 of the Laws of 1922. The ordinance so zoned the borough of Rutherford that the property of the relator originally acquired and the lot which it subsequently acquired were placed in "residence No. 2 districts." Within this district the ordinance provides that no building or premises shall be used for other than one or more of the uses permitted in residence No. 1 districts, with few exceptions, which are immaterial, because the exceptions do not permit the use of the relator's property for the purposes which it desires to use it. The effect of this provision is to place within a residential district the properties above mentioned which are all used for industrial or business purposes.

The relator, on March 15, 1923, addressed to the mayor and council of the borough of Rutherford an application requesting such a change in the zones as would take its property out of the residential section and make of it an industrial property. An ordinance with this purpose in view was drafted, but was rejected. On May 22, 1923, the relator made an application to...