The prosecutors on June 23d, 1927, applied to Frederick Bigelow, building inspector of Newark, for a permit to erect a building containing two stores on premises known as Nos. 75-81 Varsity road, Newark, New Jersey.
On July 5th, 1927, the prosecutors applied to the building inspector for a permit to erect a two-story building containing stores on the first floor and apartments for residence on the second floor, on premises known as 76-80 Varsity road, in the city of Newark.
The agreed state of facts shows that the building inspector rejected the application because the zoning ordinance of the city of Newark prohibited the erection of a building of the type the prosecutors intended to erect, and, also, that the prosecutors appealed from the decision of the building inspector to the board of adjustment of Newark, on July 21st, 1927, which board affirmed the decision of the building inspector, upon the ground that the zoning ordinance prohibited the erection of the type of building intended to be erected by the prosecutors.
There was no testimony taken before the board of adjustment, the prosecutors relying solely on the ground that the ordinance in question is unconstitutional.
The facts of this case fall squarely within those facts decided in the case of Eeldman & Pivnick, Incorporated, v. Board of Adjustment of the City of East Orange, which decision is controlling here.
The writ is dismissed, but without costs.