On certified appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
We certified for appeal, 27 N.J. 156, the Appellate Division's affirmance, April 4, 1958, of a judgment of the Law Division of the Superior Court entered September 23, 1957 directing the issuance of a permit for the erection on plaintiff's lands situate on the southwest corner of Broad Avenue and West Harwood Terrace in Palisades Park, New Jersey, in a "'B' Business" district delineated by the local zoning ordinance, of what is described in the complaint as "a five-story building consisting of 23 apartments with two stores on the first story," fronting on Broad Avenue, and in the stipulation of facts presented on plaintiff's motion for summary judgment as "the proposed apartment building."
The proceeding is in the nature of mandamus for the enforcement of what is deemed by the landowner to be its absolute right. The municipality maintains that the proposed building would not comply with the minimum side-yard and rear-yard setbacks and maximum lot-coverage requirements
for "apartment houses" under the zoning ordinance, then and now; and this, in turn, concerns the meaning of the particular regulation and the effect of two amendments of the ordinance, the first made August 13, 1957, just prior to the argument of plaintiff's motion for summary judgment, and the second on September 9, 1958, subsequent to our certification of the cause for appeal but before oral argument here.
The site has a frontage of 101 feet on the westerly side of Broad Avenue, "a depth of 110.99 feet on the southerly boundary line and a depth of 96.23 feet on the northerly boundary line which is the southerly line of West Harwood Terrace, and a width of 100 feet in the rear boundary line."
The essential facts follow: the "B" business district "extends westerly in depth the length of plaintiff's property"; there "is no existing one-family, or two-family, or group house, or garden-type apartment, or multiple family dwelling, adjacent to the south" of the plot; there is "only one other building on the same side of Broad Avenue, in the same block," a building "erected on the front property line of said street, so that no front-line setback would be required" for the planned structure under the Limiting Schedule of the ordinance; the lands to the west, on either side of West Harwood Terrace, are devoted to "one- and two-family" dwelling uses, and there is a one-family dwelling to the rear of the particular parcel; the building would not exceed in coverage 90% of the lot area, but would cover more than 50% of such area, and there would "not be a rear-yard setback of 25 feet nor aggregate side-yard setbacks of 20 feet."
These are the pertinent definitive clauses of the zoning ordinance of 1939, as amended:
"(6) 'Apartment House' -- A dwelling designed for the use of more than eight (8) families and unlimited in size and occupancy except under the terms of this ordinance."
"(18) 'Dwelling' -- Any building which is designed for or occupied in part or in whole as a house, residence, or sleeping place for one or more persons, either permanently or transiently."
The regulations and restrictions are embodied ...