Feller, J.s.c. (retired, temporarily assigned on recall).
This is an action in lieu of prerogative writs brought by plaintiff Mental Health Association of Union County, Inc., against defendants City of Elizabeth and various officials thereof. The matter is presently before this court on an order to show cause in which plaintiff seeks to enjoin defendants from interfering in any way with renovation and construction work on plaintiff's premises. Plaintiff also seeks an order directing defendants to withdraw their rescission of the building permit previously issued to plaintiff and their notice of violations issued to plaintiff. On the adjourned return date of the order to show cause defendant moved to dismiss the complaint and oral arguments were heard.
In October 1979 plaintiff acquired the subject premises known as 545 Westminster Avenue in Elizabeth. The property consists of a 2 1/2-story frame dwelling with an attached one-car garage. Plaintiff sought to use the property as a community residence for no more than six developmentally disabled or mentally ill persons.
On December 2, 1980 plaintiff's executive director, Edmund P. Murphy, received a building permit from defendant city covering plaintiff's planned renovation of the premises to comply with applicable building codes. Later that day, however, defendant LaMorte telephoned Murphy and told him that a "hold" had been placed on the building permit.
An exchange of letters between plaintiff and defendant Surmay followed, in which plaintiff sought to know the reason for
the "hold" and defendant requested further information concerning plaintiff's proposed use of the property. Finally, on March 10, 1981 plaintiff received a letter from defendant LaMorte stating that the building permit had been rescinded. A letter from defendant Surmay, dated March 12, 1981, explained the reasons for the rescission.
Surmay wrote that plaintiff's building permit had been rescinded because plaintiff's proposed use of the premises did not conform to the use provisions of the Elizabeth zoning ordinance. According to Surmay, the ordinance did not expressly provide for the establishment of community facilities for the developmentally disabled in any zone district; therefore, plaintiff's application must be denied.
The New Jersey statute governing zoning for community residences for the developmentally disabled provides, in part:
Community residences for the developmentally disabled . . . shall be a permitted use in all residential districts of a municipality, and the requirements therefor shall be the same as for single family dwelling units located within such districts; provided, however, that in the case of a community residence for the developmentally disabled . . . housing more than six persons, excluding resident staff, a zoning ordinance may require for the use or conversion to use of a dwelling unit to such a community residence . . . a conditional use permit in accordance with section 54 of the act to which this act is a supplement (C. 40:55D-67). [ N.J.S.A. 40:55D-66.1].
The statute goes on to define a community residence for the developmentally disabled as follows:
Any community residential facility licensed pursuant to N.J.S.A. 30:11B-1 et seq. providing food, shelter and personal guidance, under such supervision as required, to not more than 15 developmentally disabled or mentally ill persons, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to, group homes, ...