
    ALEXANDER PRINCE, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR ET AL., RESPONDENT.
    Submitted January term, 1925
    Decided May 18, 1925.
    Ordinances — Zoning—Three-Family House — Permit Denied Because Proposed Use Did Not Conform to Requirements of Zoning Ordinance, — Case Within Rule of Ignaciunas v. Risiey, 2 N. J. Adv. R. 852.
    Oil certiorari.
    
    Before Justices Kaljtsoh, Black and Campbell.
    Eor the prosecutor, Fast & Fast.
    
    Eor the respondent, George S. Harris.
    
   Pick Cuktam.

The prosecutor applied to the building inspector of Montclair for a permit to erect in front of, and attached in part to, a frame dwelling-house situated on his lot, 123 Watchung avenue, an addition to contain three stores. The dwelling is occupied by three families. A garage to house two motor cars is erected on the rear of the lot. The permit was refused upon the ground that the uses to which the proposed building would be put, and to which it was designed to he put, did not conform to the requirements of the zoning ordinance of Montclair. Under such ordinance the land is located in a suburban zone restricted against buildings to be used for business purposes. In fact, one-half of the block in which prosecutor’s land is located is zoned for business purposes, and the other half, that in which his lot is located, is zoned against such purposes.

After such refusal, prosecutor appealed to the board of adjustment, and that body refused the permit. He then ohtainecl a rule to show cause why mandamus should not issue, directed to the building inspector. Upon the return of such rule the respondent urged that the remedy was by certiorari to review the findings of the board of adjustment, and this court so held.

Thereupon a writ of certiorari was sued out, and brings before us the proceedings and judgment of the board of adjustment.

It is conceded that the plans for the proposed building or addition are in compliance with the building code of Montclair.

Twenty-eight reasons are presented by the board of adjustment as the basis for its judgment.

To us none of these seem tenable.

It may well be that the proposed construction may increase the fire hazard, and, therefore, the public safety, but that would be a proper subject for regulation by the building code, or, perhaps, by the zoning ordinance in prohibiting the erection of a building of such character — that is, by attaching an addition to be used for stores to a frame dwelling-house.

But this is not the prohibition of the building code nor of the zoning ordinance.

The latter absolutely and unqualifiedly prohibits any and all buildings to be used for business purposes in the zone which includes prosecutor’s property.

We think in that respect the ordinance is unreasonable, and, therefore, unenforceable, and presents no basis for the refusal of the permit to presecutor. This feature of these ordinances has so frequently been passed upon by this court as.not to require citation of authority other than that of Ignaciunas v. Nutley, 2 N. J. Adv. R. 852.

The judgment of the board of adjustment must be set aside, with costs.  