
    JOHN FISCHER, PROSECUTOR, v. THE BOROUGH COUNCIL OF THE BOROUGH OF SOUTH TOMS RIVER IN THE COUNTY OF OCEAN, AND J. LESTER YODER, DEFENDANTS.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.
    For the prosecutor, Ira A. Schulman.
    
    For the defendants, Percy Gamp.
    
   Pee Ctjeiam.

Prosecutor was convicted of a violation of a zoning ordinance, as amended, of the -borough of South Toms Elver. The amendment places his property in a business zone, bul restricts the use thereof, so that the placing of gasoline pumps and a supply station for servicing automobiles upon the property was prohibited. Prosecutor has a boatyard between state highway hTo. 4 and Toms River. The land lies to the south of Jake’s Branch. There are gasoline stations all along the highway and a large one to the north of Jake’s Branch in an almost identical location between the river and the highway. Prosecutor’s property is admirably suited for the servicing of both boats and automobiles. Restricting the use of prosecutor’s property to the business of a boatyard, and allied purposes, is without legal basis. Obviously, the restriction was arbitrary and baseless. There are no residences in the vicinity and the ordinance complained of, in substance, says to an owner of land on one side of Jake’s Branch, “you may not service automobileswhile to the owner of land precisely situate on the other side of the branch, “you may make full use of your property to your advantage.” Such action is not lawful.

The conviction is set aside, with costs.  