Rudnseey v. Bd. of Adjustment of Town of Montclair in Essex County

• Decision Date: 02 February 1926
• Docket Number: No. 227.,227.
• Citation: 131 A. 906
• Parties: RUDNSEEY v. BOARD OF ADJUSTMENT OF TOWN OF MONTCLAIR IN ESSEX COUNTY et al.
• Court: New Jersey Supreme Court

131 A. 906

RUDNSEEY

v. BOARD OF ADJUSTMENT OF TOWN OF MONTCLAIR IN ESSEX COUNTY et al.

No. 227.

Supreme Court of New Jersey.

Feb. 2, 1926.

Certiorari by Max L. Rudensey against the Board of Adjustment of the Town of Montclair in the County of Essex and others to review an order of the board on appeal of prosecutor from a decision of the building inspector refusing a permit for erection of building. Order set aside.

Argued October term, 1925, before TRENCHARD, KATZENBACH, and LLOYD, JJ.

Whiting & Moore, of Newark (Ira C. Moore, Jr., of Newark, of counsel), for prosecutor.

George R. Beach, of Jersey City (John W. Bishop, Jr., of Newark, of counsel), for respondents.

PER CURIAM. This is a writ of certiorari bringing up for review the order or determination of the board of adjustment of the town of Montclair on the appeal of the prosecutor of this writ from a decision of the building inspector refusing a permit to the prosecutor for the erection of a building on a lot at the northwest corner of Valley road and Laurel place in the town of Montclair.

As we read the record, the sole objection to granting the permit was that the building is designed for use as stores, and an ordinance of the town of Montclair, commonly known as the Zoning Ordinance, purports to prohibit the use of buildings for stores in the district in which this lot of land is located.

We think that the right of the prosecutor to have his building permit is clear under Ignaciunas v. Risley, 98 N. J. Law, 712, 121 A. 783, affd. 99 N. J. Law, 389, 125 A. 121. Mandamus against the building inspector was his proper remedy, but the board of adjustment, to whom it was unnecessary for him to appeal, had no jurisdiction to deprive the prosecutor of his constitutional right, and the refusal of the board of adjustment brought up by certiorari will be set aside. Steinberg v. Bigelow (N. J. Sup.) 131 A. 114. The testimony relating to the alleged increased fire hazard and alleged danger from increased traffic on the highway, we think, does not take this case out of the rules declared in Ingersoll v. South Orange (N. J. Sup.) 128 A. 393, affirmed (N. J. Err. & App.) 130 A. 721, and in Eaton v. South Orange (N. J. Sup.) 130 A. 362.

The order brought up will be set aside.