On return of a rule to show cause in mandamus.
For the relator, Irving E. Keith (Ward Kremer, of counsel).
For the respondents, E. Alexander Edelstein.
Before Justice Perskie, at chambers, pursuant to statute.
PERSKIE, J. This cause is before me on the return of a rule to show cause, which I allowed (R.S. 2:83-4), why a peremptory writ of mandamus should not be granted compelling respondents to issue a permit to the relator for the construction of a building, to be used as a restaurant, at the southeast corner of Third Avenue and Kingsley Street, in the City of Asbury Park.
From the unchallenged proofs as to the layout of the streets and as to the existing uses made of the properties abutting those streets, in relation to the relator's property, we ascertain the following facts:
Kingsley Street is one block west of Ocean Avenue and runs parallel thereto. Lake Avenue is the most southerly street in the city at the beach front, and runs along the north shore of Wesley Lake, the southerly boundary of the
city. At this point are located the Casino, a merry-go-round, and other amusement devices. The first east and west bound street north of Lake Avenue is Asbury Avenue. Then in order come First, Second, Third (location of relator's land), Fourth and Fifth Avenues, a park, and then Sunset Avenue,
In the area extending from Asbury Avenue north as far as Fifth Avenue and from Ocean Avenue on the east to Kingsley Street on the west are principally amusement enterprises. In the blocks to the north and south of relator's property are, among other things, lunch stands, "hot dog" stands, small restaurants, amusement activities, &c.
In the stated conditions within the neighborhood of the relator's property (Hann v. Borough of Sea Girt, 134 N.J.L. 74; 46 Atl, Rep. (2 d) 47), and in the absence of any then zoning ordinance in the city, the relator, on May 20th, 1944, made application for a permit to erect a commercial building size 45 feet by 75 feet (restaurant) on his lands, at the estimated cost of $4,000. He paid the required fee. The building inspector found that the building plan was in accordance with the building ordinance of the city and so certified it in writing.
On June 26th, 1944, the mayor and council of the city unanimously approved relator's application subject to its approval by the War Productions Board, which, in turn, approved same on May 22d, 1945.
In the early part of May, 1945, an election was held in the City of Asbury Park. As a result of that election, some of the personnel of the council was changed. The relator importuned the new body for his permit. He was told by the mayor, "Well, John, I am sorry but this is a different council, you will have to apply for a new application." Accordingly, on June 8th, 1945, the relator again made application for a permit, the building to be erected to be 45 feet by 30 feet and to cost $3,000 in cash, or $8,000 if all labor and materials had to be purchased. He ...