Opinion
March 17, 1958
Present — Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Hallinan, JJ.
In an action for injunctive relief, the appeal is from a judgment entered after trial, on the decision of an Official Referee, dismissing the complaint, and from said decision. Respondent Ferndale Center, Inc., is the owner of a shopping center which includes a parking area, and also owns an adjacent parcel. Respondent First National Stores, Inc., is a lessee of space in the shopping center. Respondent Ferndale constructed a driveway on its adjacent parcel leading from a public street to the parking area. Said parcel under appellant's zoning ordinance is in a residential district. Appellant sought to restrain respondents from using the driveway on the ground that it was not a permitted use under the zoning ordinance. The Official Referee, to whom the action had been referred to hear and determine, found that the ordinance was confiscatory not only because it deprived the owner of the use of the property for which it was reasonably adapted, but also because the property had no possibilities for the use to which the ordinance restricted it. Judgment unanimously affirmed, with costs. No opinion. Appeal from decision dismissed, without costs. No appeal lies from a decision.