Opinion
Argued October 21, 1925 —
Decided February 1, 1926.
When legal or constitutional questions are involved an appeal to a zoning board of adjustment is not a prerequisite to an application to the proper legal forum for appropriate relief, such board not being an appellate tribunal.
On appeal from the Supreme Court, whose per curiam is printed in 3 N.J. Mis. R. 540.
For the appellants, Jerome T. Congleton and Charles M. Myers.
For the respondent, Harry A. Augenblick.
The judgment under review herein should be affirmed.
In thus deciding, however, we hold that the observation in the opinion of the Supreme Court that an appeal to the zoning board of adjustment is a necessary preliminary to recourse to the courts, when legal or constitutional questions are involved, is erroneous and must be overruled upon the authority of the cases in this court of H. Krumgold Sons v. Jersey City, ante, p. 170, and Losick v. Binda, ante, p. 157.
In the Losick case we held that zoning boards of adjustment were not created as appellate bodies and that legal or constitutional questions involved in zoning requirements were not a subject-matter for the determination of such boards, but must be presented for consideration to the proper legal forum; and in the Krumgold case, that an appeal to a zoning board of adjustment is not a prerequisite to an application for a writ of mandamus.
In all other respects we are satisfied with the per curiam of the Supreme Court, and affirm, for the reasons expressed in that deliverance.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, KALISCH, KATZENBACH, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 13.
For reversal — None.