On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Ackerson, J.
This appeal is from a judgment of the Superior Court, Law Division, setting aside, as illegal and void, an amendment to the zoning ordinance of the Borough of North Plainfield.
The borough adopted its first zoning ordinance in 1923. Prior thereto a non-ferrous foundry for the manufacture of bronze and aluminum castings had been operated in a building, 36' x 200', located on an irregular shaped lot, approximately 200' x 500', at the intersection of Clinton Avenue and Carter Place in said borough. When the ordinance became effective this property was far inside the boundaries of a large "A' residence zone and the foundry thereon, by reason of its prior operation, became a permissible non-conforming use and was so continued. The defendant, Fischer Casting Company (a partnership sometimes hereinafter referred to as the "company'), acquired the property in 1933 and has continued to operate the foundry for the aforesaid purposes. In 1948 a revision of the ordinance was adopted but the company's property continued to be in the "A' residence zone.
In 1942 the defendant company proceeded to expand its plant facilities (presumably because of war contracts) without obtaining the necessary building permits. Thereafter, on the company's petition of appeal, the board of adjustment of the borough, after a public hearing, adopted a resolution recommending to the mayor and council that the company be granted permission to enlarge its plant, provided the company
execute a contract with the borough agreeing to remove all of the company's buildings within a time to be limited by such contract. On February 5, 1943, the mayor and council, by resolution, accepted and confirmed the recommendation and at the same time entered into a contract with the company which provided that the latter could complete certain buildings then in the course of alteration and construction upon condition that the company would dismantle and remove its entire plant within one year after the termination of hostilities and post a bond of $6,000 as security for the performance of the contract. At the conclusion of the war this contract was extended to expire in September, 1946, and again extended to expire in September, 1949.
However, before the latter date, the company filed a petition of appeal with the local board of adjustment seeking permission to continue indefinitely the use of all of its existing buildings. This petition was denied and thereupon the company filed a complaint in the Superior Court, Law Division, for a review of such denial. This action terminated in a decision on December 20, 1949, adjudging the aforesaid contract between the company and the borough and the extensions thereof illegal as ultra vires the municipal corporation and of no binding force. In the course of the opinion the court stated that:
"Just as obviously, however, such part of the extension of the premises which was not a legal conforming use from its inception must be returned to its original status. There would be no legal sanction for the Board of Adjustment of the Borough to entertain jurisdiction to grant a variance with reference to the extended illegal non-conforming use.'
Referring thereto in their brief in the present case, the defendants say: "The effect of this decision was that even though the enlargement of the plant was illegal and subject to removal, that the company could not be required to abide by the stringent provisions of the contract which called for removal of the entire plant.'
Thereafter, on March 16, 1950, the mayor and council of the borough adopted the amendatory ordinance, here under review, which created out of the "A' residence zone in which the above-mentioned foundry property of the Fischer Casting Company was located, a new zone, designated as a "modified commercial zone,' comprising only that specific property -- describing it precisely by courses and distances in the body of the amendment. The pertinent provisions of the amendatory ordinance are as follows:
"2. Modified Commercial Zone. In a Modified Commercial Zone, no building or premises may be used except for any of ...