State ex rel. Altschuler v. Scott

Per Curiam.

This is a zoning case. The case is before us on a demurrer to a return to an alternative writ of mandamus. The relator’s property is in East Orange, which enacted a zoning ordinance in the usual form. The relators’ land is on the southerly side of Chestnut street between South Arlington avenue and South Burnett street, in a section zoned as a “small volume resident district.” The relators desire to erect an apartment-house upon the lot. A building permit was refused because the land was zoned against the erection of apartment-houses. No other question is involved.

This court has frequently held that there is nothing in the erection upon a lot of an apartment-house which justified the prevention of such erection by the exercise of the police power in the interest of public health, safety, or general welfare. In the zoning ordinance of East Orange the erection of apartment-houses in other localities is permitted. Where an ordinance provides for the erection of apartment-houses in some sections of the city and excludes their erection in other sections this is an unwarranted discrimination under the decisions in this state.

A peremptory writ of mandamus is awarded.