Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
In this zoning case, the action was instituted to obtain a building permit and not a variance. Plaintiffs are owners of certain premises situate in the Township of River Vale, County of Bergen, and were such owners prior to November 29, 1944, the date on which the Township of River Vale adopted its zoning ordinance.
The plaintiffs' premises are located in "Residence A District" created by the zoning ordinance. Prior to the time of the adoption of the zoning ordinance and ever since, the De Benedettis have, in addition to residing at the aforementioned premises, engaged in commercial chicken farming thereon.
On or about April 20, 1951, plaintiffs applied to the building inspector for a permit to erect additional chicken housing facilities. The building inspector refused to issue the permit to the plaintiffs and on appeal to the Board of Adjustment of the Township of River Vale, that board similarly refused to direct its issuance. Thereafter, on July 5, 1951, plaintiffs instituted an action in the Superior Court, Law Division of Bergen County, to compel its issuance.
The trial court found that the undertaking and use for which the application for a building permit was made constituted farming within the intent and purpose of the zoning ordinance; that the use requested constituted enlarging or erecting additional buildings in the normal course of business within the sanction of the enactment; "That, as stipulated by the plaintiff and the defendant said use complies in all respects and conforms to set-back, size, and structural design as required by the building code and the Zoning
Ordinance * * *"; "that the use requested is not an accessory building within the intent and definition of the Zoning Ordinance * * *"; and that the use to which plaintiffs were to devote the premises was permissible and within the intent and wording of the ordinance and, therefore, entered judgment directing the issuance of the permit. The defendants appealed from the ensuing judgment.
The pertinent provisions of the ordinance are:
Use of Buildings and Premises.
Section 1 -- Residence A District.
(a) In a Residence A District no building or premises shall be used and no building or part of a building shall be erected which is arranged, intended or designed to be used, in whole or in part, for any ...