Portnoff v. Bigelow

• Citation: 133 A. 534
• Decision Date: 10 June 1926
• Docket Number: No. 266.,266.
• Parties: PORTNOFF et al. v. BIGELOW, Building Superintendent, etc, et al.
• Court: United States State Supreme Court (New Jersey)

133 A. 534

PORTNOFF et al.

v. BIGELOW, Building Superintendent, etc, et al.

No. 266.

Supreme Court of New Jersey.

June 10, 1926.

Mandamus by Abraham Portnoff and others against Frederick Bigelow, Building Superintendent, and others. On rule to show cause. Rule discharged.

Argued May term, 1926, before PARKER, BLACK, and CAMPBELL, JJ.

Harry A. Angenblick, of Newark, for relators.

Jerome T. Congleton and Charles M. Myers, both of Newark, for respondents.

PER CURIAM. The relators, owners of land in Newark on the west side of Belmont avenue about 150 feet south of Alpine street, desire to build thereon a public garage to accommodate 50 cars, and in front of it some stores to be rented for business. With the exception of two stores on the Alpine street corner, and a row of individual private garages in the interior of the block, said block is exclusively residential and entirely built up, as also is the entire block east of Belmont avenue and directly opposite. Permit was refused on the ground that the lots in question and surrounding territory are zoned for residence purposes, and relators conceiving such restrictions to be unwarranted in law, apply for a writ of mandamus.

We think they have failed to show sufficient ground for such a writ. Mandamus is not awarded except where the legal obligation to perform the act is clear. Nicholson, etc., Co. v. Newark, 35 N. J. Law, 396; Secaucus v. Kiesewetter, 83 N. J. Law, 227, 84 A. 622; Connolly v. Smith, 86 N. J. Law, 466, 91 A. 1034; Uszkay v. Dill, 92 N. J. Law, 327 106 A. 17; Browne v. Lee, 98 N. J. Law, 1, 118 A. 539. Relators' claim is, and must be, that the provisions of the zoning ordinance, so far as the same affect the property in question, are an unreasonable exercise of the police power. A zoning ordinance, like other ordinances, may be reasonable in some aspects and unreasonable in others. The presumption is that it is reasonable, and the burden of proving it otherwise is on the prosecutor. Neumann v. Hoboken, 82 N. J. Law, 275, 278, 82 A. 511, and cases cited; Hench v. East Orange (N. J. Sup.) 130 A. 363. In the latter case this court refused a mandamus to permit the erection of 16 individual garages. We think the present case still stronger as a basis for similar refusal, as we are quite unable to perceive anything unreasonable about forbidding a large public garage in the midst of a continuous block of closely built dwelling houses.

The rule to show Cause will be discharged, with costs.

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