Catalano v. Pemberton Tp. Bd. of Adjustment

• Decision Date: 24 February 1960
• Docket Number: No. A--612,A--612
• Citation: 60 N.J.Super. 82,158 A.2d 403
• Parties: Samuel CATALANO, Plaintiff-Respondent, v. PEMBERTON TOWNSHIP BOARD OF ADJUSTMENT et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 82

60 N.J.Super. 82

158 A.2d 403

Samuel CATALANO, Plaintiff-Respondent, v. PEMBERTON TOWNSHIP BOARD OF ADJUSTMENT et al., Defendants-Appellants.

No. A--612.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 13, 1959.

Decided Feb. 24, 1960.

Martin L. Haines, Mount Holly, for defendants-appellants (James Logan, Jr., Mount Holly, attorney).

Salvatore J. Avena, Camden, for plaintiff-respondent.

Before Judges PRICE, SULLIVAN and FOLEY.

The opinion of the court was delivered by

PRICE, S.J.A.D.

By its appeal the Township of Pemberton seeks to reverse a judgment, entered in favor of plaintiff in the Superior Court, Law Division, in an action in lieu of prerogative writ, by which the court declared void a zoning ordinance of that township purportedly adopted June 4, 1954. By his complaint, filed April 25, 1957, plaintiff challenged the legality of the action of the defendant board of adjustment which, after a public hearing, had denied his application made April 2, 1957 for a variance to permit him to operate public 'picnic grounds' as a commercial venture in an area restricted by the ordinance under attack to residential uses.

On the completion of the testimony in the trial court plaintiff abandoned the first and second counts of his complaint in which he had alleged that, in rejecting his application, the defendant board of adjustment acted 'wilfully' and in 'gross abuse of its discretion,' and relied only on the third count, which incorporated that portion of the first count, reciting plaintiff's application for a permit to operate 'Picnic Grounds,' and then charged that the 'Board of Adjustment, responding to the application hereby (sic) referred to acted ultravires in that the ordinance heretofore referred to was and still is a nullity, more particularly the same never having been duly enacted in the law as required by New Jersey Statutes Annotated.' At the trial plaintiff contended that the ordinance had not been 'introduced' at a township committee meeting and had not 'passed a first reading,' as required by the then applicable law (R.S. 40:49--2, since amended, L.1955, c. 121, N.J.S.A.), nor had it been finally legally adopted as required by said statute.

Defendant township committee contended that the ordinance had been 'introduced' and 'passed a first reading' on May 18, 1954 at a 'joint' meeting then held by it and the township planning board. Plaintiff countered that as a matter of fact no meeting of the township committee had been held on that date. The trial court so found, and as a consequence adjudged that the defendant committee 'had not complied' with the applicable statutory requirements referable to the passage of an ordinance and determined that the ordinance in question was 'void and without legal effect.'

In support of its appeal the township contended that: (a) the trial court's finding that the ordinance was void was against the weight of the evidence; (b) the court erred in refusing to hold that, despite the non-existence of minutes of the township committee showing that a meeting of that body was held May 18, 1954, parol evidence established that such a meeting had been held and that the challenged ordinance had then been 'introduced' and 'passed a first reading'; (c) plaintiff failed to commence his action 'within the time required by R.R. 4:88--15'; (d) plaintiff was barred by laches and was estopped from attacking the validity of the zoning ordinance; (e) the trial court erred in refusing to permit plaintiff to supplement the record pursuant to R.R. 4:62--2(f); and (f) the trial court erroneously permitted certain of plaintiff's witnesses to testify although they had not been named in answer to defendant's interrogatories.

The laxness of the municipal proceedings, challenged in the instant action, is demonstrated by the facts revealed by the record. The minute book of the township committee contained no minutes of a meeting of that body on May 18, 1954. Minutes of an alleged planning board meeting on that date were as follows:

'May 18th, 1954

'A meeting of the Planning Board was held with the following being present (names of members listed).

'All requests for permits were approved and authorizations issued.

'On motion by Mr. Haines the Zoning Ordinance be introduced and hearing on same on June 8th, at 8 P.M. A group from Laurel Mano (sic) was present and protested the 8 side line.

'The meeting adjourned. (planning board secretary's signature followed).'

The trial court rejected the municipality's contention that it should consider the aforesaid zoning ordinance reference appearing in the planning board minutes of May 18 as an effective substitute for minutes reflecting the alleged action of the township committee on that date.

Other evidence before the trial court included a printed copy of the newspaper publication of the ordiance on May 26, 1954. That publication contained a written statement that the ordinance had been 'introduced' at a meeting of the township committee on May 18, 1954, and would be 'considered for final passage after public hearing at a meeting of the said Township Committee * * * on Friday, June 4, 1954 at 8:00 P.M.,' despite the fact that the planning board minutes, on which the municipality relied as aforesaid, designated 'June 8th' as the date when a public hearing on the ordinance would be held. The municipality suggested that the reference to the latter date in the aforesaid planning board minutes was the result of a typographical error.

The trial court received parol evidence offered by the municipality that there was a township committee meeting on May 18, 1954, and a full reading of the ordinance on that date. Plaintiff and two witnesses, who stated that they were present on May 18, 1954 for a conference with planning board members, testified that not only was the zoning ordinance not then read but that no township committee meeting was then held as claimed by defendants.

The evidence demonstrated that the pertinent zoning map in its final form was not completed on May 18, 1954; in fact the zoning map bore the date of May 28, 1954. A professional associate of the township engineer testified that the zoning map was 'made from' a township road map and did not 'as finally formulated' come into 'actual completed existence' until the period 'between May 24th and May 28th, 1954.' There was conflicting evidence, which the trial court found unnecessary to resolve, as to whether or not by reason of changes in the map it was completed in its final form even by June 4, 1954, the date the ordinance purportedly was adopted.

The original ordinance did not appear in a township 'ordinance book.' In fact it was conceded at trial that the township did not then have an 'ordinances book' and that customarily ordinances were kept in the minute book. The original questioned ordinance did not even appear in that book and, in substitution therefor, a copy of the printed ordinance as it appeared in the legal advertisement in the newspaper had been placed in the minute book. The township clerk testified that he did not know the whereabouts of the original zoning ordinance.

The controversial date of May 18, 1954 was not the date of a regular meeting of the township committee. None of the witnesses on behalf of the township was able to testify as to the manner in which such alleged special meeting on that date was called or who called it. Admittedly the township clerk was not present on that date. The member of the planning board and the member of the township committee, who testified that a township committee meeting was held in conjunction with a planning board meeting on May 18, 1954, stated that, in the clerk's absence, a partner of the counsel for the township committee read the ordinance and took notes of the proceedings at that meeting. However, the attorney, called as a witness for the municipality, had no recollection of so doing.

The trial court's aforesaid judgment, declaring the ordinance a nullity, was entered August 11, 1958. An appeal from said judgment was taken on August 21, 1958. Thereafter the municipality moved before us to have the trial record supplemented by including minutes of the alleged May 18, 1954 township committee meeting, as set forth and outlined in a resolution adopted by the township committee at its regular meeting held September 5, 1957. By this procedure the township contended that the 'correction of the minutes,' 'nunc pro tunc,' would have 'the effect of reinstating the zoning ordinance and establishing it as law, thereby controlling the decision to be made in this appeal.' We denied the motion on October 21, 1958, without prejudice to an application by defendant to the trial court seeking the desired 'correction' of the records of the township committee. In remanding the cause to permit such motion to be made before the trial court we stated that we expressed no view as to the propriety of or justification for the municipality's proposed motion or as to the effect thereof if granted. Pursuant to the order of remand, the township on November 21, 1958 asked the trial court to open its aforesaid judgment so that the record might be supplemented by receipt of minutes of the alleged meeting of May 18, 1954, specifically adopted as such by the aforesaid resolution of September 5, 1958. The trial court held that the suggested minutes were of no legal effect and, on May 1, 1959, denied the township's motion to reopen its judgment. This action, as above noted, is also challenged by appellant as erroneous.

We are of the opinion that the trial court, under the authority of Campbell v. City of Hackensack, 115 N.J.L. 209, 214, 178 A. 794, 98 A.L.R. 1225 (E. & A.1935), and State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 207, 213, 72 A.2d 322 (1950), would have been fully justified in refusing to receive testimony seeking to create minutes of the alleged township committee meeting of May 18, 1954. However, an...