Civil action. Proceedings in lieu of prerogative writ.
In lieu of the prerogative writ of mandamus, Rule 3:81-1, plaintiffs filed their complaint asking this court to command the superintendent of buildings of the City of Atlantic City to issue a building permit to them for the erection of a one-story building at the corner of Roosevelt Place and the Boardwalk, Atlantic City, New Jersey. The location is in Business Zone No. 2. Counsel waived and cured certain irregularities in procedure and the matter came for a hearing on application by the plaintiffs for a summary judgment. This application was denied and the court ruled that facts were in dispute and that testimony should be taken. Prior to the taking of testimony, the court held a pretrial of the controversy and merged the issues set up in the complaint and answer as contemplated to be filed.
Application for a permit was made by the plaintiffs to the superintendent of buildings, Louis F. Watson, on March 27, 1951. This application was denied April 5, 1951. There appears from the testimony introduced, that with the application for the permit were presented plans and specifications. These were introduced in evidence. Plaintiffs proposed the erection of a soda fountain and a luncheonette. The facade of this building is sketched to show the front with its two large windows and its two sliding, overhead doors. These are shown in the plan marked "Boardwalk Elevation." To the other appointments set forth in the blueprints and testified to, we need not allude except to say that no objections are raised by the City of Atlantic City or by its superintendent of buildings as to construction regulations, but rather to the purpose to which the structure is to be dedicated, and to the fact that he, the superintendent, received protests remonstrating against such a building for the purpose of operating a soda fountain and luncheonette.
Counsel for the defendant argues that to permit the construction of the building contemplated would be a violation of the Atlantic City Zoning Ordinance as passed November 29, 1929, and as amended: Ordinance No. 9, May 16, 1940. The amendment referred to reads, in part, and we quote the part pertinent to the case before us:
"Section VI. Use Regulations Controlling Business Zones No. 2 and Business Zones No. 3. In Business Zones Nos. 2 and 3, no building or premises shall be used, and no building shall be erected or altered which is arranged, intended or designed to be used for any of the following specified trades, industries or uses: * * *
"19. Lunch cars or wagons, pullman diners."
Counsel for the defendant argues that the proposed design and construction are important and recites:
"The proposed building is a one-story structure which will stretch forty-two (42) feet along the Boardwalk and is twenty-six (26) feet deep. It will contain counters; one counter nineteen (19) feet six (6) inches in length will parallel the Boardwalk, and another counter sixteen and one-half (16 1/2) feet in length will be constructed at right angles to the Boardwalk. On the front of the building will be two overhead doors and two sliding windows. The overhead doors can be raised and recessed into the ceiling, and the sliding windows may be opened. The construction of the building shows an evident intent, arrangement and design for an open-front operation for sale of the food, hot dogs, soft drinks and other related items to strollers and passer-by on the Boardwalk. From the facts as they appear in this case, it is evident and apparent that the building will be devoted to the sale of food."
"The explicit wording of the ordinance prohibits the erection of any building which is arranged, intended or designed for use as a lunch car or wagon, etc. The ordinance is directed to the use to which the proposed building will be devoted. That the building in question by construction, design, arrangement and intent is to be devoted to the same uses as a lunch car is beyond question."
The court agrees that the use of lunch cars have been judicially recognized in New Jersey. Counsel refers to Hart v. Teaneck Township , 134 N.J.L. 422, 48 A. 2 d , 750 (Sup. Ct. 1946), and quotes certain language there relative to ...