Fritz, Seidman and Milmed. The opinion of the court was delivered by Fritz, P.J.A.D.
[143 NJSuper Page 485] This appeal by the Borough of Freehold from an adverse judgment following an action in lieu of prerogative writs in a zoning matter necessitates further
consideration of our determination in Hill v. Eatontown Bd. of Adj. , 122 N.J. Super. 156 (App. Div. 1972). A searching look at Hill is required because the trial judge in the matter before us, while in announced disagreement with that which he conceived to be the holding in Hill , correctly believed himself obligated to follow that holding. Reinauer Realty Corp. v. Paramus , 34 N.J. 406, 415 (1961).
The facts involved here are not the subject of any substantial dispute. Jesse A. Howland & Sons, Inc., trading as Allied Transit Mix, Inc. (Howland), and its predecessor or predecessors, have operated a concrete plant in the Borough of Freehold for many years. Prior to 1973 the Freehold zoning ordinance was amended and concrete plants such as that in question were excluded. Accordingly, the Howland use became one permitted only because of its prior nonconforming use status. In the fall of 1973 Howland decided upon some further construction at the site. It applied for a building permit, with plans contemplating a new "batch plant and control building." On November 30, 1973 the building inspector issued a building permit and Howland immediately commenced construction. By March 1974 Freehold had a different building inspector who routinely inspected the progress until, in April 1974, apparently following complaint relating to the placement of certain concrete blocks, he stopped the work and rescinded the building permit. Testimony advises us that at that time the work was 90-95% complete and that "around $168,000" was either spent or committed.
Meetings between company and municipal officials and other interested parties followed. While there is considerable disparity as to what was then said or promised, it is clear that a site plan was presented by Howland to the planning board for its approval. The approval, incorporated in a resolution of the planning board dated June 19, 1974, specifically required Howland to obtain a variance from the Freehold board of adjustment.
Howland commenced this litigation to set aside the revocation of the building permit on July 3, 1974. In the meantime it applied to the board of adjustment for a use variance. On September 23, 1974 the board of adjustment denied that application. An appeal from that determination was consolidated with the then pending action in lieu of prerogative writs challenging the revocation of the building permit.
The judgment below directed reinstatement of the building permit.
In the path he travelled in arriving at his determination the trial judge analyzed the problems carefully. At the pretrial conference he defined the issues as follows:
a. Was the denial of the Board of Adjustment to recommend a use variance arbitrary, capricious and unreasonable?
b. Should the Court direct the recommendation for a variance?
c. Is there an expansion of operations or facilities of a nonconforming user as to ...