On appeal from the Superior Court, Law Division, Bergen County, to the Appellate Division of the Superior Court, certified by the Supreme Court on its own motion.
For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[21 NJ Page 472] The question here is whether the plaintiff is entitled to compel the Borough Clerk of Little Ferry to issue to him a license to operate a used car lot on a parcel of land zoned for business but in violation of record deed restrictions imposed upon the land by the borough when it was the owner thereof.
The property in question was zoned for business pursuant to an ordinance adopted by the borough in 1937. In September 1940 the borough conveyed a large tract of land, including the lot in question, to Leonia Homes, Inc., and in so doing imposed certain restrictions on the use of the land. Among these restrictions it was provided that:
"No trades or business shall be carried on, on any part of the property conveyed herein, and the restrictions against trade and industry shall be construed to include the erection of signs and billboards.
These covenants and restrictions are to run with the land and shall be binding on all the parties and all persons claiming under them until January 1, 1966, at which time said covenants and restrictions shall terminate.
If the parties hereto or any of them, or their heirs or assigns, shall violate or attempt to violate any of the covenants or restrictions herein before January 1, 1966, it shall be lawful for any other person or persons owning any other lots in said development or subdivision to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenant or restriction, and either to prevent him or them from so doing or to recover damages or other dues for such violations."
Thereafter the land was conveyed by Leonia Homes, Inc. to Bendix Homes, Inc. by a deed which repeated the restrictions and again provided that they were to run with the land and be binding upon all parties and all persons claiming under them until January 1, 1970, at which time they were to be automatically extended for successive periods of ten years unless a majority of the then owners decided to change them. The tract was then subdivided into about 147 lots, and approximately 100 homes were built in that community. One of these houses is now occupied by the plaintiff as a residence.
Immediately adjoining the plaintiff's residence on the south is a lot which was conveyed to him and his wife on September 9, 1955 by Bendix Homes, Inc. by a deed which provided that the conveyance was subject to zoning ordinances and restrictions of record.
On October 21, 1955, pursuant to the requirements of an ordinance adopted by the borough in 1948, the plaintiff
made application for a license to transact a used car business on that lot. The plaintiff's application was substantially in order and, except for the deed restrictions which were known to the defendant, we presume the license would have been issued. But no action was taken on the application and the plaintiff thereupon brought this action in lieu of our former prerogative writ of mandamus in the Superior Court to compel an act which he alleges permits of no discretion on the part of the defendant.
Before the defendant had an opportunity to answer the complaint, the plaintiff moved for a summary judgment. The defendant countered with a similar motion. On these motions a series of affidavits were submitted bringing out the facts which we have already stated. The plaintiff, in an attempt to justify his position in light of the knowledge of the restrictions with which he was charged, asserted that these restrictions had systematically been disregarded and violated with impunity. Presumably this was an attempt to convince the court that the borough had waived any rights it had to enforce the deed restrictions. In reply an affidavit by the mayor of the borough showed that only one of the alleged uses contrary to the restrictions was on property covered by the restrictions in issue and as to this he denied that there had been any waiver, release or discharge ...