On appeal and order to show cause.
For the plaintiff, Morris N. Scharf, pro se (John W. Ockford, of counsel).
For the defendants, Romeo R. Napolitano (James A. Major, of counsel).
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. These consolidated cases, styled on petition for a declaratory judgment and on certiorari, present two orders sought to be reviewed. Each order has for its source plaintiff's asserted right to his continuation of the non-conforming use of his building or structure (R.S. 40:55-48) as a two-family housekeeping unit.
On March 10th, 1936, the Borough of Ramsey enacted a zoning ordinance. The premises in question, No. 20 Franklin Terrace, was designated to be in Zone "A" Residence which restricts, as far as is here pertinent, the continuation or use of any building or structure to a single detached house used as a residence for one housekeeping unit. The building erected on the lot was originally a one story and a half frame barn used for the housing of carriages, horses, cows and
chickens. Sometime in 1920 the northerly half of the building was converted into a one-family dwelling and as such was so occupied for a period of over twenty years. The southerly half of the building was not altered or remodeled and remained substantially in its original state and condition up to the time the premises were purchased by the plaintiff.
On October 10th, 1942, the plaintiff purchased the said premises. On or about February 3d, 1943, he made application to Charles W. Eidel, building inspector of the borough, for a permit to make certain minor alterations to the premises. The request was granted by the building inspector because he erroneously conceived the premises to be in an area zoned for business. Plaintiff proceeded to alter the southerly portion of the building. When it was completed and ready for occupancy the plaintiff made application to the Zoning Commission for an exception to the ordinance so that he could convert the structure into a two-family dwelling. Objections were filed by adjoining property owners and the plaintiff withdrew his application. He thereafter applied to the Zoning Board for a certificate of non-conforming use but subsequently withdrew this application.
On July 16th, 1943, the plaintiff was advised by the building inspector that the Zoning Board ruled that the inspector erred in issuing the permit to the plaintiff and that a violation of the zoning ordinance existed by reason of the use of the premises as a two-family dwelling. Cf. Dickinson v. Plainfield, 13 N.J. Mis. R. 260, 265; 176 A. 716; affirmed, 116 N.J.L. 336; 184 A. 195. The plaintiff was given until August 20th, 1943, to remove the violation. On August 17th, 1943, a summons was issued and served on the plaintiff for the violation of the zoning ordinance as aforesaid, but the borough did not cause a complaint to be filed nor did it proceed further in the matter at that time.
On October 22d, 1943, the plaintiff instituted suit in the Supreme Court, Bergen County Circuit, for a declaratory judgment (R.S. 2:26-69), to determine "his rights and status in respect to said structure and particularly an adjudication that such structure is a non-conforming ...