Antonelli Const. v. Milstead
| Decision Date | 02 March 1955 |
| Docket Number | L--6512 |
| Citation | 112 A.2d 608,34 N.J.Super. 449 |
| Parties | ANTONELLI CONSTRUCTION, Inc., a New Jersey corporation, Plaintiff, v. Lester W. MILSTEAD, Building Inspector, Sylvester B. Billbrough, Joseph Mennite, Charles R. Stevenson, Jr., Alexander Schwan, Joseph P. Long and Robert U. Cassel, Mayor and Common Council of Borough of Paulsboro, Defendants. No . Law Division |
| Court | New Jersey Superior Court |
Donald R. Taggart, Camden, for plaintiff.
William B. Kramer, Woodbury, for defendants.
The plaintiff herein is the owner of Lots 14 and 16 in Block 8 on Plan of Lots of the Paulsboro Home Site Development Co., made by Joseph R. Moorland, C.E., situate in the Borough of Paulsboro, County of Gloucester and State of New Jersey.
On or about January 29, 1954 plaintiff, through its agent, Angelo Antonelli, orally submitted detailed plans to the defendant Lester W. Milstead, building inspector of said borough, in furtherance of a request for a building permit for a row of houses consisting of four individual units. No formal written application for such a permit was ever made by plaintiff.
The ordinance under which the building inspector was appointed provided, as far as here pertinent, as follows:
Although there was not submitted at that time a separate instrument which could be deemed to be specifications for said building enterprise, the building inspector admitted that there was sufficient information delineated on said plans to serve as specifications and thereby fulfil the requirements under the ordinance hereafter referred to. Upon the presentation of the plans, Antonelli was advised by the building inspector that in no event would he issue a permit, since he had been advised by the mayor and common council to issue no further permits for row houses.
The plans called for a construction which not only conformed to the requirements of the building code, but exceeded the minimum requirements thereof. The building inspector further stated that he not only refused to issue such a permit but he refused as well to give the plaintiff an application blank and would not have permitted, in any event, the formal filing of plans and specifications with him.
The directions to the building inspector were the result of a series of actions theretofore taken by the common council on June 2, 1953. The minutes of the governing body in this connection disclose the following:
'Mr. Gatuso, representing the Lynn-Built Homes Company, and Mr. George Meade and Mr. Barron explained their viewpoint on the project.
'Cassel moved, Long seconded that Engineer Conover be instructed to make a study of the drainage problem in the area of Thompson Avenue and Paul Avenue and submit a plan for removing the surface water and to execute the plan before we act any further on the plans for the Meade tract.
'Schwan moved, Stevenson seconded that the Borough Engineer, Conover, be authorized to make the necessary survey of the entire area and the Meade tract and submit to Mayor and Council the cost of remedying the drainage problem.
'Schwan moved, Cassel seconded, that row house be prohibited in the Borough of Paulsboro.
'Long moved, Cassel seconded that no further extensions be allowed in the sewer mains until such time as the sewer plant is adequate to carry any increase.
It is seen that by way of resolution, common council attempted to prevent the future construction of all row houses in Paulsboro.
The Borough of Paulsboro has no zoning ordinance, and although there has heretofore been appointed a planning board, no master plan has been adopted. The defendants now seek to justify their refusal to issue a building permit upon the failure of the plaintiff to meet those formal requirements of the ordinance in question, which provide for a written application and a formal filing of the plans and specifications with the building inspector. In the light of the testimony of the building inspector that he did not permit and would not have permitted a formal application and filing of the plans and specifications, the plaintiff was not required to have complied therewith. Defendants cannot now be heard to complain of the plaintiff's failure in respect to the procedural requirements as a ground for defeating its right to relief where they themselves made it impossible for the plaintiff to so comply.
Although such refusal may be deemed a waiver of the formal requirements, Reimer v. Dallas, 129 A. 390 (Sup.Ct.1925), criticized in Tice v. Borough of Woodcliff Lake, 12 N.J.Super. 20, 78 A.2d 825 (App.Div.1951); Federal Advertising Corp. v. Hardin, 137 N.J.L. 468, 60 A.2d 615 (Sup.Ct.1948), it is as well apparent that were the plaintiff here obliged to so comply it would have required him not only to have performed a useless and fruitless act, but in all probability an act impossible of accomplishment. The acts of the borough agent constituted a waiver of the formal requirements of the ordinance and as well excused the plaintiff from a strict compliance with its terms, requiring application and filing, since the borough made such compliance impossible. The building inspector and the other municipal officials exhibited an intention not to perform an act which it was their plain duty to perform, I.e., to furnish an application blank and to accept the plans and specifications for filing. They thereby also demonstrated their intention not to issue a building permit under any circumstance. This course of action constituted a sufficient refusal to warrant the issuance of a writ not only to oblige the building inspector to furnish an application blank and accept the plans and specifications for filing but, under the facts hereinafter set forth, to issue a building permit. State ex rel. Hanna v. Common Council of Rahway, 33 N.J.L. 110 (Sup.Ct.1868).
The law does not require a vain form. Walsche v. Sherlock, 110 N.J.Eq. 223, 159 A. 661 (Ch.1932); Siena v. Grand Lodge, etc., Order Sons of Italy, 11 N.J.Super. 507, 78 A.2d 610 (App.Div.1951); Holub v. Jacobwitz, 123 N.J.Eq. 308, 197 A. 423 (Ch.1937).
It is therefore here held that this defense of the defendants is without merit.
It therefore becomes necessary to consider the balance of the defenses, which may be combined in the following statement by the defendants: 'Construction of row houses in Paulsboro has been banned by action of the governing body and, in any event, both the sewage and the drainage systems are inadequate to provide for the construction of row houses.'
As above noted, there is in existence in the municipality neither a master plan as required under the municipal planning act, N.J.S.A. 40:55--1.1 et seq., nor a zoning ordinance, as required under N.J.S.A. 40:55--30 et seq. What the defendant municipality is here quite patently attempting to do is to restrict the construction of row houses without compliance with either the planning or zoning acts. Although planning and zoning are closely related in their conception, they are not identical. Zoning is a separation of the municipality into districts, and the regulation of buildings and structures in the districts so created, in accordance with their construction and the nature and extent of their use. Planning is a term of broader significance and connotes a systematic development contrived to promote the common interest of a municipality, particularly with relation to its future physical growth, progress and needs. Mansfield & Swett, Inc., v. Town of West Orange, 120 N.J.L. 145, 198 A. 225 (Sup.Ct.1938).
To accomplish these two particular purposes, the Legislature enacted the above statutes. In order to attain the zoning restriction here sought by the municipality it must be through the instrumentality of an ordinance. N.J.S.A. 40:55--30. A resolution is ineffective to accomplish such result. A municipality which has had delegated to it power to accomplish certain acts by way of ordinance cannot accomplish that result by way of an enactment of any less dignity, nor can an ordinance be amended by a resolution.
In American Malleables Co. v. Town of Bloomfield, 83 N.J.L. 728, 85 A. 167, 169, (E. & A.191...
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...See American Malleables Co. v. Bloomfield, 83 N.J.L. 728, 734--735, 85 A. 167 (E. & A. 1912); Antonelli Construction, Inc. v. Milstead, 34 N.J.Super. 449, 456, 112 A.2d 608 (Law Div.1955); 1 Antieau, supra, § 4.40 at 4--76, n. 3; 6 McQuillin, supra, § 21.04 at 199, n. 46; C. Rhyne, Municipa......
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