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Messina v. Mayor and Council of Borough of Lodi

Decided: April 1, 1952.

SALVATORE MESSINA, PLAINTIFF-APPELLANT,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF LODI, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

On August 13, 1934, the Mayor and Council of the Borough of Lodi duly passed an ordinance entitled "An ordinance to provide for licensing junk shopkeepers and junk dealers and regulating the place and manner in which such business shall be conducted." Section 1 of the ordinance reads:

"Section 1. No person, firm or corporation shall place or permit to be placed, store or permit to be stored, gather in quantities, accumulate, pile or permit to be piled, collect in a mass or permit to be collected in a mass, any old iron, old steel, old or condemned cable and cordage, worn out discarded and wrecked materials, old chain, iron, copper, brass, parts of machinery, and parts of automobile wrecks in a junk yard or junk shop within the limits of the Borough of Lodi without first obtaining a license therefor from the Mayor and Council of the Borough of Lodi."

On July 12, 1937, the following supplement was attached to the ordinance:

"Section 1. There shall be granted by the Mayor and Council of the Borough of Lodi not more than four licenses for any junk shop keeper or junk yard dealer within the limits of the Borough of Lodi until the population thereof shall exceed 25,000 in number."

Four licenses were issued and the population of the borough is about 15,000. In these circumstances the plaintiff on June 11, 1951, made application to the mayor and council for such a license contemplating the maintenance of a storage yard on a portion of his premises at No. 99 Dell Glen Avenue in the heart of the industrial zone as delineated by the zoning ordinance of the borough.

The plaintiff's application was denied by the mayor and council on July 2, 1951, solely because of the existence of

the four licenses previously granted and the numerical limitation expressed in the ordinance as supplemented.

A proceeding in the Law Division of this court to review the action of the governing body and to obtain a judgment directing the issuance of the license was thereupon prosecuted by the plaintiff. The judgment sustaining the action of the borough officials is the subject of the present appeal.

In consulting the agreed statement in lieu of record we are informed of the acknowledged facts that:

"* * * The nearest residence is 500 to 600 feet away. The premises are bounded by the Saddle River, Park Place, Dell Glen Avenue, and the large heavy industrial plant of the United Piece Dye Works. Immediately adjacent the premises in question is a large industrial storage tank 25' high and approximately 150' in diameter. The property in question has as its immediate neighbors, the large United Piece Dye Works plant, a factory manufacturing detergents and waterproof paints, a tractor shop, a warehouse, and an iron and steel works. The premises are not desirable for residential purposes, and are of limited use.

If the license sought by the plaintiff were not barred by the limitation ordinance, the land in question could be put to the proposed use under the Zoning ...


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