Clapp, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).
This is an action in lieu of a prerogative writ to compel the issuance of a building permit. The matter came on in the Law Division on stipulated facts, the trial court sustained the denial of the permit, and the plaintiffs appeal.
Plaintiffs own property in a fashionable section of Deal which consists of a lot with a frontage of 150 feet by a depth of 200 feet, known as 50 Ocean Ave., and located at the corner of Ocean and Roosevelt Avenues.
In the early part of November 1952 plaintiffs filed plans calling for an addition to plaintiffs' home to be erected on the north side of the dwelling, leaving only 35 feet between the proposed addition and Roosevelt Ave.
Defendant building inspector declined to issue a building permit on the ground that the zoning ordinance of the Borough of Deal requires that buildings in this particular area or district be set back 50 feet from any street. Plaintiffs contend that the ordinance requires a "side yard" set back of only 35 feet.
On January 9, 1953, following the rejection of the permit, the borough's board of commissioners adopted, without consideration by, or reference to the local board of adjustment, as required by the borough's zoning ordinance, an amendment (section 4 B.) purporting to clarify the then existing zoning ordinance, particularly as to set back distances.
Section 4 B , is as follows:
"4 B. No story of a building shall be nearer to the street line of any street than fifty (50) feet therefrom, except where the average alignment of the corresponding stories of existing buildings within 200 feet on each side of the lot and within the same block is less than 50 feet; where such average alignment is less than 50 feet, the set back of every story shall be equivalent to the said average alignment; anything contained in the ordinance to which this ordinance is amendatory and supplementary to the contrary notwithstanding."
We are, therefore, confronted with the following questions on this appeal:
(1) Is plaintiffs' suit premature in plaintiffs' admitted failure to appeal the defendant building inspector's denial of the permit to the Board of Adjustment of the Borough of Deal?
(2) Is the amendment of January 9, 1953 a valid amendment to the zoning ordinance? If it is, does it apply to plaintiffs' prior application for a building permit?
(3) In view of stipulation No. 3 that plaintiffs' property faces on Ocean Ave., did the trial court have the right to find, as a fact, that the property of the ...