Proctor, Waesche and Hetfield. The opinion of the court was delivered by Waesche, J.s.c. (temporarily assigned).
This suit was instituted in the Chancery Division of the Superior Court. The amended complaint, which is in two counts, is entitled "Amended Complaint and Complaint in Lieu of Prerogative Writs." The first count of the amended complaint is against the Asbury Park Enterprises, a New Jersey corporation. The second count is against the City of Asbury Park, the City Council, and J. Oliver Armstrong, City Manager and Acting Director of Public Works of said City.
The plaintiffs seek: (a) to enjoin the Asbury Park Enterprises from erecting any building or structure on a certain lot in said city in violation of a covenant or condition restricting the use of said lot subject to which the lot was purchased by the said defendant from the city; and (b) to compel the said defendant to erect on said lot a particular type of structure in accordance with the covenant subject to which the lot was purchased by the said defendant Asbury Park Enterprises, from the city.
The plaintiffs also seek to set aside a certain building permit issued to the Asbury Park Enterprises by the defendant Armstrong as acting director of public works and as city manager. They also request the court to order and direct the city officials to enforce the provisions of the covenant subject to which the city sold the said lot.
The defendants moved for a summary judgment to dismiss the amended complaint and complaint in lieu of prerogative writs. The motion was argued on affidavits and depositions. The court ordered that summary judgment be entered in
favor of all the defendants and against the plaintiffs dismissing the amended complaint and complaint in lieu of prerogative writs. The plaintiffs appealed.
The City of Asbury Park owned in fee Lot 1, Block 145, on the tax assessment map of said city. Block 145 is bounded on its northerly side by First Avenue; on its easterly side by Ocean Avenue; on its southerly side by Asbury Avenue; and on its westerly side by Kingsley Street. The said lot is in the form of an "L"; and it has frontage on each of the four streets on which Block 145 fronts. On First Avenue Lot 1 has a frontage of 124 feet, 2 inches. Lot 1 faces Ocean Avenue for the entire length of the block along that street, a distance of 250 feet. Lot 1 also faces Asbury Avenue for the entire length of the block along that street, a distance of 350 feet. On Kingsley Street, Lot 1 has a frontage of 65 feet. The lot contains approximately 46,300 square feet.
The plaintiffs own the remaining land in Block 145. Their property fronts on First Avenue and Kingsley Street; and contains 45,200 square feet.
The City Council of Asbury Park received an offer of $85,000 for the purchase of Lot 1, Block 145. Pursuant to N.J.S.A. 40:60-26(c) the city council, at a special meeting held on May 18, 1954, approved said offer subject, however, to final approval being given at a meeting of said council to be held on May 28, 1954. The city council directed that public notice be given of said offer, and of the meeting of the council at which time the offer would be given further consideration.
The said public notice stated that the city council had approved an offer of $85,000 for Lot 1, Block 145, and that other bids for the lot may be submitted to the council, verbally at public auction, at its meeting which was to be held at the city offices on May 28, 1954. The said notice further stated that the lot would be sold subject to a covenant that the purchaser would apply for and obtain a building permit "for the erection of an elevator apartment or apartment hotel building of not less than seven stories with
stores on the street level on the land facing Ocean Avenue and a building consisting of not less than one story store building or store and apartment building on the land facing Asbury Avenue, costing not less than $1,000,000." The public notice further stated that no structure or structures other than those mentioned in the said public notice ...