Lutz v. Kaltenbach

This is an appeal from a judgment of the Supreme Court, overruling a demurrer to an alternative writ of mandamus and awarding a peremptory writ.

The proceeding grew out of the refusal of appellant to issue a building permit to respondents to erect an addition to their building on South Broad street in Elizabeth. The sole ground for such refusal being that the proposed addition contemplated the construction and use of four stores in violation of the provisions of the zoning ordinance of the city of Elizabeth; the lands upon which such construction was contemplated being, under such ordinance, in a zone restricted to residential uses and purposes. Subsequent to the refusal of appellant to issue the permit an appeal was taken to the board of adjustment, which body sustained the action of appellant and refused to issue the permit.

Two grounds for reversal are urged and argued: 1. That the board of adjustment is a necessary party to these proceedings and has not been made a party. 2. That the proper remedy is bycertiorari to review the proceedings and findings of the board of adjustment.

This court, in H. Krumgold Sons v. Jersey City, ante, p. 170, held: "Where a zoning ordinance is ineffective to deprive an owner of property of his right to use the same for store purposes, no appeal to a board of appeals constituted under said ordinance is necessary as a prerequisite for an application for a writ of mandamus."

And in Losick v. Binda, ante, p. 157, we further held that boards, such as boards of adjustment, are created for, and have jurisdiction, only for the purpose of dealing with properties peculiarly situated with reference to zoning requirements and to provide for equitable modifications where it is apparent unnecessary hardship would result to the owner if the provisions of the ordinance were literally enforced, as in Allen v.Paterson, 98 N.J.L. 661; affirmed, 99 N.J.L. 532, and have no authority or jurisdiction to act as an appellate body for the purpose of reviewing the legal or equitable character of the building inspector's act in allowing or rejecting an application for a building permit, nor to pass upon the question as to whether the provisions of the zoning ordinance are in furtherance of the proper exercise of the police power of the municipality.

Both grounds of appeal here urged have heretofore been definitely settled by this court, and the board of adjustment having no jurisdiction over the matters presented by the case before us, an appeal to that body was unnecessary, its findings are legally without value and should be disregarded, as they were.

The judgment below is affirmed, with costs.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, MINTURN, KALISCH, BLACK, CAMPBELL, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 12.

For reversal — None.