For the relators, Ward Kremer.
For the respondents, Samuel Y. Hampton.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. This is an application for a peremptory writ of mandamus to compel the Board of Commissioners of
the Borough of Avon-by-the-Sea and the borough clerk to issue to the relators a license to conduct a hotel at 515 Ocean Avenue.
In 1947 relators purchased the property which is located on the west side of Ocean Avenue. Across the street there is the boardwalk and then the Atlantic Ocean. The house is three stories high, of frame construction and has always been used as a private residence. It has nine bedrooms, two bathrooms, two lavatories, a separate toilet on the first floor, foyer, living room, rear living room, dining room, breakfast room and kitchen. Relators intend to offer sleeping and eating facilities to guests during the summer seasons, operating on both the American and European plans.
The validity of the ordinance is not attacked. It creates four residential zones. In "A" zone only one- and two-family private dwellings are permitted. "B" zone is restricted to one-family private dwellings. In "C" zone one- and two-family private dwellings, hotels, apartment houses, boarding houses or rooming houses are allowed. "D" zone, in which relators' property is located, is limited to one-family dwellings, hotels or apartments and constitutes a choice residential area in the borough. Another ordinance prohibits the maintenance or operation of hotels, boarding houses, rooming houses or lodging houses without first securing a license.
Relators applied to the borough commissioners for a license to operate a hotel at the aforesaid address but the application was denied. The municipality contends the building is not a hotel, does not comply with a building ordinance requiring all buildings converted to use as hotels, &c., to be fireproof, and that the relators did not conform their application to the requirements of the ordinance regulating hotels and boarding houses.
With the exception of "The Columns" and the "Avon Inn" there are no hotels, boarding houses or rooming houses in "D" zone. Both The Columns and the Avon Inn have been operating as hotels long prior and subsequent to the enactment of the zoning ordinance. ...