Civil action in lieu of prerogative writ. On motion for summary judgment in favor of plaintiffs.
[22 NJSuper Page 180] The facts are set forth in the affidavits and statements presented by counsel, as well as the pleadings and exhibits. This action brings up for review the action of the Board of Adjustment of the Town of Hammonton in revoking a permit issued for the erection of a solid wall six feet high to create a solid enclosure of lots 115 to 133, inclusive, of Block 121A, which solid enclosure was to be
used for the purposes of storing junk of all types and description under the business commonly known and designated a "junk yard." At the time application for the permit was made, the plaintiffs furnished to the building inspector plot plans drawn to scale by a certified civil engineer of the State of New Jersey who was also the municipal engineer, together with a formal written application for the permit. At the same time, application was made for a certificate of occupancy, and there was paid to the building inspector the fees for both the building permit and the certificate of occupancy.
The local zoning ordinance then in force, adopted on October 22, 1945, placed the lands which are located in the vicinity of Thirteenth Street and Anderson Avenue, in the Town of Hammonton, and are adjacent to and adjoining the Atlantic City Railroad, in the "Industrial District." Section 18 of the zoning ordinance provides:
"(1) Within any Industrial District, no building or premises shall be used for any of the following purposes: * * * junk yard, except within a solid enclosure not less than 6 feet high; * * *."
The surrounding territory is largely used for industrial purposes.
On June 25, 1952 at a meeting of the board of adjustment, the plaintiffs, by their attorney, appeared before the board and
"stated that his client was making an informal application for permission to erect a cyclone fence on the proposed junkyard as a substitute for the solid enclosure required by the zoning ordinance. Mr. DeMarco stated that a permit has been issued which would allow the Giordanos to construct a fence of solid enclosure and he stated further that the Giordanos had all the material on hand to construct such a fence. However, Mr. DeMarco continued, the Giordanos are requesting the granting of permission by the Board to erect a cyclone fence in the place of the solid enclosure because they believe it will be a more suitable fence for the neighborhood. He stated that if the Board feels this type of fence would make a more presentable appearance than a solid fence enclosure, then a formal application for the cyclone fence would be submitted.
Board member M. L. Ruberton questioned whether or not a corrugated fence could be erected. He stated further that he was not in favor of a junkyard being operated in that neighborhood and in view of the power granted the Board under Article 22, paragraph 2, he was willing to take action to overrule the building inspector who had previously granted a building permit for the erection of a fence.
It was moved by Mr. Ruberton, seconded by Mr Miller, that permit No. 2270 issued on June 17, 1952 by the Building Inspector to D. Giordano Sons to erect a solid fence 6' high at 13th and Anderson Ave., in Hammonton, N.J. be and hereby is under the power granted the Board of Adjustment under Section 22, subsection 2, of the zoning ordinance of the Town of Hammonton be and the same is hereby revoked and is of no force and effect." (Excerpt from the minutes of the meeting of the board of adjustment held on June 25, 1952.)
As a result of the adoption of this motion, the board of adjustment instructed the building inspector to send by registered mail a letter to the plaintiffs advising them that the board under the authority vested in it under section 22, subsection (2) of the zoning ordinance, on June 25, 1952 ...