[31 NJSuper Page 239] This is an injunction action wherein Edgeboro, Inc. seeks to restrain defendant, its officials, employees
and servants, from in any way interfering with and preventing the company from disposing of all garbage, ashes, refuse, trash and debris of the City of New Brunswick (hereinafter designated as the city) at the company's dumping area in East Brunswick Township (hereinafter designated as the township). The city seeks similar restraint against any interference with its delivery of such waste materials to Edgeboro at the dumping area. An order to show cause with interim restraint issued. On the return day defendant moved for summary judgment in its favor on the ground that the complaint set forth no cause of action and the pleadings raised no material issue of fact. It also moved for an order permanently restraining plaintiffs from disposing of the city's garbage, ashes and refuse at Edgeboro's dumping area in the township. The parties have agreed to submit the matter for determination on the statement of facts and legal issues set out in the pretrial order.
Edgeboro owns about 400 acres of unimproved lowland and swampland in the defendant township, situated in an area designated by the township zoning ordinance of December 23, 1952 as "heavy industrial." Section XIII of the ordinance provides:
In the Heavy Industrial H.I. Zone, no lot shall be used or no structure shall be erected, altered or occupied for residential purposes or for any purpose except the following:
(1) Uses permitted in the Light Industrial L.I. Zone.
(2) All industrial and manufacturing uses if located not less than 500 feet from the boundary of a district other than an industrial district and upon issuance of a use permit by the Board of Adjustment.
(3) A use permit shall be granted after proof is submitted that no danger to life, limb, or property is created beyond the limits of the lot and that no objectionable noise, smell, smoke, dust, gas, glare, or effluent is emitted, the effect of which is noticeable outside the Industrial district.
Such permitted uses may include:
(5) The dumping, incineration or disposal of refuse.
"It is understood between the parties hereto that consent has heretofore been granted by resolutions of the party of the second part [East Brunswick Township] and The Township Board of Health to the use of the aforementioned dumping grounds by the Borough of Milltown upon certain stipulated conditions, and such consent constitutes a portion ...