H. Krumgold & Sons, Inc. v. Mayor & Aldermen of Jersey City

• Decision Date: 19 October 1925
• Docket Number: No. 46.,46.
• Citation: 130 A. 635
• Parties: H. KRUMGOLD & SONS, Inc. v. MAYOR AND ALDERMEN OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

130 A. 635

H. KRUMGOLD & SONS, Inc.

v.

MAYOR AND ALDERMEN OF JERSEY CITY

et al.

No. 46.

Court of Errors and Appeals of New Jersey.

Oct. 19, 1925.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by H. Krumgold & Sons, Inc., for mandamus to be directed to the Mayor and Aldermen of Jersey City and others. From a judgment awarding a peremptory writ of mandamus, defendants appeal. Affirmed.

Thomas J. Brogan, of Jersey City, for appellants.

Gross & Gross, of Jersey City (Benjamin Gross, of Jersey City, of counsel), for respondent.

KATZENBACH, J. This is an appeal from a judgment, of the Supreme Court awarding to H. Krumgold & Sons, Inc., a corporation, a writ of peremptory mandamus directing the issue of a building permit for the erection of a building upon lands owned by it. The case was argued in the Supreme Court at the March term, 1925. Immediately after the conclusion of the argument, a peremptory writ was awarded. No opinion was filed. The Supreme Court gave its consent to the moulding of the pleadings for an appeal. It also permitted further testimony to be taken to be used on the appeal. The appellants have availed themselves of this permission.

The facts disclosed by the record briefly are as follows: The respondent is the owner of a tract of land located at the southwest corner of the Hudson county boulevard and Grant avenue, in the city of Jersey City. The tract has a frontage on the boulevard of 98 feet and a frontage of 50 feet on Grant avenue. On December 24, 1925, the respondent presented to the zoning commission of Jersey City an application to erect on this tract a four story brick building containing 6 stores and 15 dwelling apartments. Plans and specifications for the proposed building were filed on the same day with the building department. These plans were corrected in accordance with a suggestion of the city engineer and resubmitted. The corrected plans received the approval of the tenement house commission. The zoning commission rejected the application. The rejection was based upon section 2 of an ordinance regulating and restricting the location of trades and industries, etc. This section provided that no building in which a business, trade, or commercial enterprise is to be conducted should be erected within a residential district. The respondent's lands were located in a residential district. The building department, when the corrected plans were filed, which complied with the Building Code, referred the application for a permit to the board of commissioners of Jersey City. The respondent presented a petition addressed to the commissioners. This procedure was in accordance with an ordinance requiring the building department to refer such an application to the board of commissioners where stores were contemplated in the proposed building. On February 3, 1925, the question of granting the permit came before the board of commissioners. After a hearing, the commissioners denied to the respondent a permit, because the plans for the proposed building provided for the construction of stores on the ground floor. The respondent then applied to the Supreme Court for a peremptory writ of mandamus which, as has been stated, was allowed.

The Supreme Court held that the present case came within the decision of Ignaciunas v. Risley et al., 98 N. J. Law, 712, 121 A. 783, affirmed by this court, 125 A. 121, commonly known as the Nutley Case. The appellants contend that the present case is not controlled by the Nutley Case for two reasons: First, in the present case, the city of Jersey City is endeavoring to prevent the erection of stores in a school section where thousands of children must necessarily pass and repass in order to attend school, which it is contended presents a different situation than in the Nutley Case, where it was held that a combined store and dwelling in a residential section was not detrimental to the health, safety, or general welfare of the community; and, second, the statute of 1924 relating to zoning (chapter 146 of the Laws of 1924), which had not been enacted at the time of the decision in the Nutley Case, enlarges the powers of a municipality in zoning matters and gives the legal power to a municipality to zone lands, such as the respondent's premises, against industrial or commercial uses.

When chapter 146 of the Laws of 1924 was enacted, it expressly repealed the statute relating to zoning enacted in the years 1920, 1921, and 1922. By the provisions of the 1924 act, the Legislature sought to give to...