AMERICA ON WHEELS, ETC.v.EATONTOWN BD. OF ADJ

Superior Court of New Jersey, Appellate DivisionMar 11, 1981
178 N.J. Super. 155 (N.J. Super. App. Div. 1981)
178 N.J. Super. 155428 A.2d 532

Argued February 23, 1981 —

Decided March 11, 1981.

Appeal from Superior Court, Law Division.

Before Judges ALLCORN, PRESSLER and FURMAN.

Joseph Gordon argued the cause for the appellant ( Gordon and Kanengiser, attorneys).

Michael J. Cernigliaro argued the cause for respondent Board of Adjustment ( Campbell, Foley, Lee, Murphy Cernigliaro, attorneys).

John W. O'Mara argued the cause for respondents mayor and council.


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 compliance with all conditions of the licensing ordinance.