Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendants Township of Lyndhurst, its board of adjustment and the building inspector, appeal from a judgment of the Superior Court, Law Division, directing the building inspector to issue certificates of occupancy to plaintiffs Arkam Machine & Tool Co. (Arkam) and Vanity Optical Mfg. Co. (Vanity), corporations of the State of New Jersey.
On April 13, 1939 the township adopted a zoning ordinance which placed premises known as 730 Fifth Street, Lyndhurst, New Jersey (on which was erected a one-story factory building) in an "A" residence zone. At that time the subject property was occupied by Sprague Manufacturing Co., Inc. (Sprague), then engaged in the business of manufacturing "music boxes." Sprague, depending upon the season, engaged between 20 and 80 employees. The biggest industrial machine in operation was a 125-ton press, in addition to which there were five other presses which were "quite large." Sizable trucks were "often" used in connection with this business. Paul Otto was the active head of Sprague, and he carried on the company's affairs uninterruptedly until his death on November 18, 1951. Thereafter the business on a smaller scale was conducted by his widow and others until April 28, 1959, when the premises were sold to the plaintiff Arkam, a company engaged in the manufacturing of small blades -- an industrial business characterized as "light manufacturing."
Prior to assuming possession, Arkam, through its attorney, without conceding the necessity for doing so, sought to obtain a certificate of occupancy from Lyndhurst; the municipality refused to act, taking the position that such a certificate was not necessary since the nonconforming use was still "light industrial."
On November 1, 1959 Arkam leased a portion of the premises to Vanity, which manufactures frames for glasses. The combined number of employees of both Arkam and Vanity is "[a]bout five or seven. * * * It may be a little more. I hope it will be more. * * * Seven to nine." Plaintiffs employ machinery "quite smaller" than the equipment used by Sprague. Their largest press weighs 14 tons, and they use a "car" for their transportation needs.
On April 26, 1960 both Arkam and Vanity were charged by the building inspector of Lyndhurst with occupying the premises without certificates of occupancy and were convicted, in the municipal court, for violating the local ordinance; sentence thereon was postponed on condition that they apply for certificates of occupancy. On May 11, 1960 plaintiffs made such applications, and they were denied. An appeal was taken to the Board of Adjustment of the Township of Lyndhurst, which, after hearing, denied the applications. Arkam and Vanity thereupon filed a complaint in lieu of prerogative writs to review the adverse determination of the board. The trial court concluded that the action of the board of adjustment in refusing to issue the requested occupancy certificates was arbitrary and discriminatory and should be set aside, and the building inspector was directed to issue the certificates. It is from this judgment that defendants appeal.
We are convinced after a studied review of the record that the trial judge, in reversing the board of adjustment, reached a sound and proper conclusion. The board, in support of its determination, assigned the following reasons:
"SINCE; the issuance of the same will impair the local 'Zoning Ordinance,' and
1 -- The applicant has not sustained the burden of proof necessary to warrant the issuance of a Certificate of Occupancy.
2 -- The application does not list reasons for granting the Certificate and no testimony was given to the effect.
3 -- The property is located in an 'A' residential zone and the applicant has not advanced reasons for the granting of a variance ...