Ingersoll v. Vill. of S. Orange

• Decision Date: 24 September 1924
• Docket Number: No. 73.,73.
• Citation: 126 A. 213
• Parties: INGERSOLL v. VILLAGE OF SOUTH ORANGE et al.
• Court: New Jersey Supreme Court

126 A. 213

INGERSOLL

v. VILLAGE OF SOUTH ORANGE et al.

No. 73.

Supreme Court of New Jersey.

Sept. 24, 1924.

Application for mandamus by Charles H. Ingersoll against the Village of South Orange and Ira T. Redfern, Building Inspector of South Orange, to compel issuance of permit to build an apartment house. On rule to show cause why mandamus should not issue. Alternative writ allowed.

Argued May term, 1924, before TRENCHARD, MINTURN, and LLOYD, JJ.

Howe & Davis, of Orange, for relator.

Riker & Riker, of Newark, for defendant.

PER CURIAM. This is an application for a mandamus. The chief justice awarded a rule to show cause why a peremptory or alternative writ of mandamus should not issue against the building inspector, requiring him to give to relator, Ingersoll, a permit for the erection of a three-story apartment house for the accommodation of 17 families.

It is stipulated that the building inspector refused to issue the permit because the city ordinance zoned the property in question against apartment houses.

In our judgment, the case falls within the principle of the Nutley Case (N. J. Err. & App.) 125 Atl. 121, and also within the principle declared in Handy v. South Orange (N. J. Sup.) 118 Atl. 838, and Vernon v. Westfield (N. J. Sup.) 124 Atl. 248, and in cases Nos. 70 and 72 against the city of East Orange (Jersey Land Co. v. Scott, 126 Atl. 173, and Handy v. City of East Orange, 126 Atl. 926), decided this term. Upon the reasoning underlying those cases, we think the ordinance was outside of the powers conferred by the Zoning Act (Laws 1922, c. 162; P. L. p. 277), under the principle of the Nutley Case, as decided in the Supreme Court, the act in question, in so far as it undertakes to limit the use of the land as to this, is unconstitutional. Ordinarily this conclusion would justify the allowance of a peremptory writ, and so conclude the case. The case, however, contains the following stipulation:

"It is admitted that the authorities would testify that the village has not sufficient fire facilities to adequately take care of apartment houses, in the event of fire. It is further admitted, however, that there are, at the present time, three apartment houses existing in the said village, which were constructed before the so-called zoning law was passed by the state Legislature."

The introduction of this provision, presenting a situation of public necessity, upon which it is argued the inherent police power of the municipality for the...