Civil action. On application of plaintiff to restrain the enforcement of zoning ordinance by defendant.
[1 NJSuper Page 609] The plaintiff filed a complaint in this cause in which it seeks to have this court declare that an ordinance adopted by the defendant, the Borough of Sea Girt, known as Ordinance 101, adopted on April 11, 1933, and the amendments thereto and supplements thereof, are unconstitutional, and that they be declared to be unreasonable and arbitrary, as to the plaintiff, on the ground that the use of the hereinafter
mentioned premises by the plaintiff constitutes a conforming use, and that the court restrain the defendant from proceeding with two complaints now pending in the Recorder's Court in the Borough of Sea Girt against the plaintiff, as well as further proceedings thereon, in which violations are charged by the defendant against the plaintiff.
In a stipulation signed by the parties it was agreed that the plaintiff contends that its use of the premises in question is permitted by virtue of the establishment of the use thereof prior to and since the enactments of the zoning ordinances and is therefore a nonconforming use, protected and continued under N.J.R.S. 40:55-48, and that said use has not been enlarged or extended.
The defendant contends that the use is in violation of the ordinances mentioned, and that the use thereof by the plaintiff at the present time is not protected by the statute above mentioned.
The stipulation also provided that the transcript of the testimony taken before the Recorder of the Borough of Sea Girt on December 22, 1947 be used as evidence in the issues before this court as well as affidavits furnished on motions made in this case.
Ordinance No. 101, adopted April 11, 1933; provides in Section 5 as follows:
"In District 4 no building or premises shall be used and no building shall be erected or altered or arranged, intended or designed to the use for any of the following specific trades or industries;
"1. Manufacturing of any kind, except such as is incidental to the carrying on of a retail business therein. * * *
Ordinance No. 177, adopted on November 21, 1944, was an amendatory ordinance of Ordinance 101, particularly wherein the premises occupied by the plaintiff is placed in a residential zone wherein no building could be erected or used except for a one-family dwelling. Ordinance No. 177 contained a prohibition against the use of buildings for "warehouses" as mentioned in Ordinance 101.
The premises in question is occupied by a one-story cement-block building with stucco finish and ...