
    PICCADILLY ICE CREAM CO., A CORPORATION, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE ET AL., RESPONDENTS.
    Decided April 17, 1946.
    Before Justice Parker.
    For the prosecutor, Julius P. Litwacle.
    
    For the respondents, Lawrence B. Keenan.
    
   Parker, J.

This is a zoning ease. One Pasqnale Tontarelli for some time past was the owner of premises in the westerly section of the Town of Belleville known as Nos. 31 and 33 Florence Avenue. Florence Avenue is a street one block long about the middle of a section previously zoned for business, as indicated by the map in evidence, and on this property Tentarelli has maintained and used on the rear half of his plot of land, 50 by 100 feet, a concrete and brick building one story in height and used, as stated in the brief and in the testimony, for the manufacturing of lemon ices, storage of ice cream trucks, signs and ice cream cabinets. The original building was built in 1924 and enlarged in 1935, the use being substantially unchanged. In September, 1945, Tentarelli agreed to sell, and the present prosecutor agreed to purchase, the premises iu question and hied plans and specifications for the erection of the proposed one-story building in front of the existing one-story structure, the new building to he used, as stated, “for the purpose of offices, dressing rooms and storage of office supplies.” A permit was refused on two grounds, one of which was that the zoning ordinance had been changed shortly after he had purchased the property, and the premises zoned as residential. The question, therefore, relates to the propriety of this latter ordinance.

This question, as I see it, is substantially one of fact; in substance, whether this change of the zoning situation at the time and under the circumstances in question is reasonable or otherwise. My conclusion, from an examination of the evidence submitted, is emphatically to the contrary. The whole district, as already noted, was zoned for manufacturing. The map in evidence has no indicated scale but, roughly speaking, I should say that the traet zoned for business would measure between nine and ten acres. The photographs show with illuminating accuracy the fact that the immediate neighborhood, including the premises in question, is largely vacant. It is plain that the prosecutor, having established a business already for the purposes above named, is immune to interference therewith by any zoning regulations; and it is also plain that the use to be made of the proposed additions is entirely innocuous as regards neighboring buildings, and from a practical point of view, would be a considerable improvement of the situation as regards the premises owned by the prosecutor.

The refusal of the permit will therefore be set aside, with costs.  