On appeal from a judgment of the Supreme Court.
For the appellants, Irwin Rubenstein.
For the respondent, Fred Goldstein.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court directing the issuance of a peremptory writ of mandamus to compel the building inspector and the commissioners of the town of West New York to issue a permit for the construction of a five-story apartment building containing seventy-one apartments.
The record presented to us is meagre and unsatisfactory, but it shows that on March 22d, 1938, an amendment to the
zoning ordinance was adopted by the governing body which amendment placed the lands of the relator in a zone restricted against the erection of apartment houses more than two and one-half stories in height and designed for use by more than three families. Certiorari proceedings were instituted and resulted in a judgment of the Supreme Court setting aside this amendment to the zoning ordinance because of irregularities in adoption. This judgment was rendered September 12th, 1938.
Meantime, and on May 26th, 1938, the relator applied for a building permit for the erection of the proposed apartment house, and the building inspector declined to issue the permit.
On September 8th, 1938, at a special meeting called for several purposes, an ordinance was introduced to amend the zoning ordinance, which amendment likewise restricted relator's property against the proposed use. This amending ordinance was finally adopted on October 25th, 1938.
Notice was served by the relator that it would apply to the chief justice on September 17th, 1938, for a writ of mandamus. It appears, however, that the application was actually made to the chief justice on December 3d, 1938. He allowed the alternative writ on December 8th, 1938, the attorney for the building inspector and the town consenting thereto. It would appear, therefore, that at the time of the application for the mandamus on December 3d, 1938, the second amendment to the zoning ordinance, the adoption of which is not attacked, was in effect.
The matter came on before the Supreme Court en banc on demurrer and that court awarded peremptory mandamus, holding that the record did not show the reasonableness of the restriction and further that, since there was no valid ordinance zoning the property against apartment houses in existence on May 26th, 1938, the relator was entitled to its permit, notwithstanding the adoption of a valid amendment before the application for mandamus was made.
As to the reasonableness of the restriction, we are of the opinion that the burden was upon the relator to demonstrate that it was unreasonable and that there was no duty upon the town to ...