This is an action in lieu of prerogative writs whereby the plaintiffs seek to have vacated and declared null and void certain acts of the Township of Ocean and also seek a review of a variance from or an exception to the zoning ordinance of the Township of Ocean recommended by the board of adjustment and approved by the township committee.
The matter comes before the court at this juncture on a motion for summary judgment by the plaintiffs on one phase of the case, namely, the validity of a building permit issued by the building inspector of the Township of Ocean pursuant to the variance or exception.
The essential facts which have been stipulated for the purpose of this motion are as follows:
The Village of Loch Arbour became incorporated as a village of the State of New Jersey on January 20, 1958, in accordance with the provisions of N.J.S.A. 40:157-1 et seq.
On February 18, 1958 five trustees were duly elected for the Village of Loch Arbour pursuant to N.J.S.A. 40:157-14 and organized themselves as the Board of Trustees of the Village of Loch Arbour.
Prior to incorporation the territory of the Village of Loch Arbour was part of and included within the boundaries of the defendant Township of Ocean, and subject to its laws and ordinances, including the zoning ordinance of the Township of Ocean adopted November 7, 1949. By the terms of this ordinance, the entire area of the proposed Village of Loch Arbour was classified as a Residence Zone "D" except a 100-foot strip on each side of Main Street.
On August 1, 1958 defendant Deal Gardens, Inc., applied to the Board of Adjustment of the Township of Ocean for a building permit to construct a hotel-motel on premises located within the boundaries of the incorporated Village of Loch Arbour which was zoned Residence "D" under the zoning ordinance of the Township of Ocean. A resolution was adopted on August 28, 1958 recommending to the township
committee that the permit be granted. The Township Committee of the Township of Ocean approved the recommendation and adopted a resolution on September 2, 1958 directing that the requested permit be issued. Said permit was issued by the building inspector of the Township of Ocean on October 10, 1958.
The Board of Trustees of the Village of Loch Arbour had objected to the issuance of this building permit and had passed a resolution on August 30, 1958 protesting the same, which was served on the Township Committee of the Township of Ocean prior to their meeting on September 2, 1958.
On October 10, 1958, the Board of Trustees of the Village of Loch Arbour adopted an ordinance to adopt by reference the zoning ordinance then in force in the Township of Ocean, and appointed Harry S. Kirk as building inspector of the Village of Loch Arbour. The board of trustees had previously, on August 30, 1958, established and appointed by resolution a board of adjustment in the village.
On November 3, 1958 the Township of Ocean amended their zoning ordinance to specifically include a motel as an ...