On appeal from the Supreme Court.
For the relator-appellant, Lionel P. Kristeller.
For the respondents, Joseph R. Megill.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment of the Supreme Court in a mandamus proceeding wherein that court, on the bringing on of the matter for oral argument at the January, 1935, term, forthwith overruled a demurrer to the return and dismissed, without opinion, the alternative writ theretofore allowed the appellant. The summary action of the Supreme Court seems not to have been in the exercise of its discretionary control of prerogative writs or upon a factual determination that the uses now and heretofore made of the land in question and of other lands in the neighborhood do not merit a statutory "special exception" hereinafter mentioned, but, as represented to us without contradiction, for the purpose of having the meritorious questions, which we assume to be of law, brought promptly to us for review.
Appellant desires to erect a gasoline and oil filling station on a plot of land owned by him at the southwest corner of Ocean and Fifth avenues in the borough of Bradley Beach and seeks an appropriate building permit. The writ was directed to the board of commissioners and the inspector of buildings and required them to issue the permit or to signify cause to the contrary.
The facts against which the demurrer ran were stipulated to the court below as an agreed special case. It appears in part:
In January, 1920, the borough passed a building ordinance whereby the issuing of a municipal permit became a preliminary essential to the erection, alteration or repair of a building. By the terms of the ordinance the permit was to be issued at the order of the board of commissioners upon the report of the inspector of buildings that "this and other ordinances of the borough" were complied with. In December, 1923, the board of commissioners of the borough adopted a zoning ordinance setting off the borough into various "commercial" and "non-commercial" zones and prohibiting business trade or industries within the non-commercial zone. The lot in question was and is in an area zoned as noncommercial and is more than one hundred and fifty feet from a
commercial zone. The land lying between the easterly line of Ocean avenue on the west, the high water mark of the Atlantic ocean on the east and between the northerly and southerly lines of the borough -- being the entire beach front as far inland as Ocean avenue -- is, by the terms of the ordinance, not zoned either as "commercial" or as "non-commercial." In that area there are no zoning restrictions. All of that property is owned by the borough of Bradley Beach. Nevertheless, on it and across the street from the premises of the appellant there are, and have been for upwards of twentyfive years past, public bath houses and refreshment stands vending ice cream, beverages, cigars, cigarettes, sandwiches and frankfurters. The appellant's land has been used continuously since long before 1923 for commercial tennis courts and the sale of tobacco and of food and liquid refreshments. The ordinance contained no provision for a board of adjustment or other machinery for the supervision or enforcement of its mandates. Appellant made application under the building ordinance for a permit and was denied by the board of commissioners of the borough because "it was sought to erect a commercial structure in a non-commercial zone."
The question for us to decide is whether there was an effective zoning ordinance, for the restriction against business uses in specified zones lay only in that enactment. The restriction had no definite or substantial relationship to the safety, health, morals or general welfare of the community and therefore was invalid (State v. Nutley, 99 N.J.L. 389; Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 Id. 183), and could not justify the municipal refusal unless the ordinance was validated by the zoning amendment of 1927 to the constitution and by the enabling act passed under the authority thereof. Pamph. L. 1928, ch. 274.
Section 7 of the 1928 statute provides that "whenever any municipality shall have adopted an ordinance, or ordinances, prior to the adoption of this act, for any of the purposes set forth in this act, such ordinance, or ordinances, shall continue in effect as if they had been adopted under the ...