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America on Wheels v. Board of Adjustment of Borough of Eatontown

Decided: March 11, 1981.

AMERICA ON WHEELS, EATONTOWN, INC., PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF EATONTOWN AND MAYOR AND COUNCIL OF THE BOROUGH OF EATONTOWN, A MUNICIPALITY OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Allcorn, Pressler and Furman. The opinion of the court was delivered by Allcorn, P.J.A.D.

Allcorn

For the reasons set forth in our opinion in the companion case of Supercade Cherry Hill, Inc., v. Eatontown , 178 N.J. Super. 152, decided under even date, we are satisfied that ordinance 89.7.15.3 (1979) is invalid in its exclusion from commercial zones of places of amusement involving "coin operated amusement, . . . or entertainment machines. . . ."

For the same reason and for the further reason that the permitted limit of the use of only two such machines incidental to a principal use bears no reasonable and substantial relationship to any proper and legitimate purpose that would be served by the regulations, we are convinced that this restriction also is ultra vires the municipality and, thus, is invalid. Home Builders League v. Berlin , 81 N.J. 127 (1979); State v. Baker , 81 N.J. 99 (1979).

In view of this disposition, the variance issue has been mooted.

Accordingly, the judgment of the Law Division is reversed and the Mayor and Council are directed to order the issuance to plaintiff of licenses for eight additional coin-operated amusement machines at plaintiff's roller rink, upon ...


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