Goldmann, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Plaintiffs appeal from a partial summary judgment holding that a building permit is valid.
The undisputed facts are: Defendant Mehaloff is the owner of property with a frontage of approximately 65 feet on Route 1 in Woodbridge, which is rented to Spotless Venetian Blind Service & Mfg. Co. (Spotless), of which he is a principal. The business of Spotless is, and for 16 or 17 years prior to the inception of this suit has been, the sale at retail of venetian blinds and window shades which are cut and assembled on the premises.
The property is zoned by Woodbridge for B-3 Highway Business Zone use. Prior to February 18, 1964, art. XVI, § 1(a), of the zoning ordinance, relating to the B-3 zone, permitted "All uses permitted in the B-2 Central Business Zone, subject to all requirements of that zone."
Among other uses permitted in the B-2 zone, art. XV, § 1(c), provided for:
"Baking, laundry, printing, upholstering and similar establishments, and businesses of a similar or no more objectionable character, subject to the following provisions:
(1) All goods or products manufactured or processed shall be sold at retail on the premises.
(2) All such manufacturing or processing shall be done on the premises, and not more than eight (8) persons shall be employed in said activity at any one time."
On December 14, 1962 Mehaloff, having initially failed to obtain a building permit, applied to the Board of Adjustment of Woodbridge for a variance which would allow both an expansion of the existing building and its use for the manufacture and storage of canvas awnings and canvas products. The board recommended a variance; it was granted by the township committee on January 15, 1963.
On February 18, 1963 plaintiffs, taxpayers of Woodbridge and owners of property adjacent to Mehaloff's commenced this action in lieu of prerogative writs alleging that the reasons in support of the variance were legally inadequate.
Mehaloff filed an answer and cross-claimed on the ground that the proposed use was permitted in the B-2 zone, which, unlike the B-3 zone, had no side yard or parking restrictions requiring a variance.
On January 24, 1964, apparently as a result of administrative reconsideration, Mehaloff received a building permit to proceed with the proposed expansion. But he did not proceed then or subsequently. Relying on the permit, he moved for summary judgment on the ground that its issuance had rendered the case moot. Plaintiffs opposed the motion, arguing that the evidence before the board of adjustment indicated that sales were solicited and consummated by telephone, hence the operations (which ...