Hendlin v. Fairmount Const. Co.

• Decision Date: 29 March 1950
• Docket Number: No. C--297,C--297
• Citation: 8 N.J.Super. 310,72 A.2d 541
• Parties: HENDLIN et al. v. FAIRMOUNT CONST. CO. et al.
• Court: New Jersey Superior Court

Page 310

8 N.J.Super. 310

72 A.2d 541

HENDLIN et al. v. FAIRMOUNT CONST. CO. et al.

No. C--297.

Superior Court of New Jersey Chancery Division.

March 29, 1950.

John J. Clancy, Newark, for the plaintiffs Nathan N. Hendlin and another.

Maurice H. Pressler and Mr. Henry Gottfried, Newark, for the plaintiffs George J. Weinik and others.

Charles Handler, Newark, for the defendant City of Newark.

Alfred L. Padula, Newark, for defendant-cross-claimant Fairmount Const. Co.

Ruback & Albach, Newark (Meyer E. Ruback, Newark, appearing), for Maurice Levin and George Levin, defendants, counterclaimants and cross-claimants.

STEIN, J.S.C.

The controversy here presented for decision involves a number of causes of action, some purely equitable in nature, one sounding in mandamus, another seeking review in lieu of certiorari, while all the parties pray for declaratory judgment. Under the former practice these issues, though between the same parties and though related because of common questions of law and fact, would have had to be tried in different courts. Even Chancery's power to pass upon incidental or related legal questions, once its equitable jurisdiction had been properly invoked, could not extend to those forms of relief which were obtainable only by the machinery of the prerogative writs issuable only out of the former Supreme Court. It is further proof of the merit and efficiency of our new court procedure that this court is enabled by reason of consolidation to hear and dispose of these various actions at the same time and by a single decision. As was pointed out by Chief Justice Vanderbilt in Steiner v. Stein, 2 N.J. 367, at page 377, 66 A.2d 719, 724: 'Were the trial judge in whichever division he is sitting not to hear the entire case once he has assumed jurisdiction, all of the confusion and waste of judicial effort which the framers sought to eliminate would reappear. * * *'

The actions here to be disposed of were consolidated into the within action by an order made by the Appellate Division of the Superior Court on November 21, 1949. The consolidated actions are now submitted by all the parties by a written sipulation in which it is agreed that the court's decision shall be made upon the following facts and proofs, viz.:

1. All uncontroverted allegations of fact and all admissions of fact contained in the various pleadings of the parties.

2. All the depositions taken in the cause and all exhibits received in evidence in the course of the taking of such depositions.

3. The transcribed proceedings before the Commissioners of the City of Newark at the various hearings relating to what is known as the 'Ivy Hill' tract and relating to those actions taken by the said Commissioners which are challenged in this cause.

4. Certain specific facts set forth under sections 4 to 7 (both inclusive) of said stipulation.

5. Such inspection as the court itself would make of the Ivy Hill tract and the surrounding areas and neighborhood.

In response to the request of all counsel in the case and attended by them, I visited the tract in question (which lies wholly within the City of Newark) and also made an extended inspection of the entire section in which the tract is located, including adjacent areas lying in the Village of South Orange, in the Township of Maplewood, and in the City of Newark itself. I was thus afforded a very adequate opportunity of observing the several neighborhoods to which reference is made in the depositions and viewing the types of structures erected thereon. This enabled me better to understand the testimony of the experts, who on some questions were in sharp conflict.

Essentially and primarily this is a zoning case in which property owners challenge the validity of an ordinance passed by the Commissioners of the City of Newark on October 5, 1949, amending the then existing Zoning Ordinance so that the entire Ivy Hill Tract (including lands owned by the City and used for public purposes) was changed from a Second Residence District to a Third Residence District, thereby making lawful the erection upon said tract of multiple dwelling houses and apartment houses. A secondary dispute in the case relates to the action of the said Commissioners when on November 2, 1949, they adopted a resolution waiving, releasing and modifying a certain restrictive provision contained in an antecedent deed made on March 12, 1947, by the City of Newark to the defendant Fairmount Construction Company, by which deed there was conveyed to the grantee a tract of 52 acres and which deed contains the following provision restricting the use of the lands conveyed: 'That the use of the premises herein conveyed is restricted to one and two family dwellings, and it is hereby convenanted and agreed that the party of the second part, its successors and assigns, shall forthwith upon the delivery of this deed, commence and diligently prosecute to completion the development of the lands and premises herein conveyed and the construction thereon forthwith of approximately four hundred one and two-family dwellings. Each one-family dwelling house is to cost not less than Seventy-five Hundred ($7500.00) Dollars and each two-family dwelling house to cost not less than Twelve Thousand ($12,000) Dollars. All improvements and dwellings are to be made and completed substantially in accorance with the said plan of 'Ivy Hill Park', and the drawings and specifications annexed thereto, and a contract between the Fairmount Construction Company and The City of Newark, bearing even date herewith, all on file in the office of the City Clerk of The City of Newark.'

In March of 1947 the City of Newark owned the original and much larger Ivy Hill tract, upon which it had previously erected two public buildings, an Almshouse and a Convalescent Hospital. It appears from the maps in evidence that the entire tract contained approximately 67 acres. The tract upon which the Almshouse is situate contains about 10 acres and the tract upon which the Convalescent Hospital is situate contains about 5 acres. Subtracting the last two areas from the acreage of the entire original tract, the City was possessed of approximately 52 acres which it offered at public sale. From the transcript of the hearings which are in evidence, it plainly appears that the Commissioners were in 1947 unanimous in their desire that the 52 acres, to be offered for sale, should be so developed as to furnish greatly needed additional housing, with preference to World War veterans. They were not, however, in accord as to the type of housing for which the acreage was to be used. At least one of the Commissioners was strongly for the erection of multiple dwelling structures. The final judgment of the body was that the lands should be sold for the purpose of having erected thereon one and two-family houses, the former type to cost no less than $7500 and the latter type no less than $12,000. That these figures, if they assumed probable costs, were fantastically sanguine was later proved by the test of experience. However, the advertised terms of sale expressed both the restriction of such and the minimum cost of construction contained in the provision which eventually was lodged in the deed of conveyance for the 52 acres. The highest bidder was the defendant Fairmount Construction Company. It paid for the lands $165,000 in cash. For the next two and a half years it proceeded with its construction project, erecting 122 dwelling houses. The character of these houses is of some importance. It is claimed by some of the parties to this suit that all, or nearly all, of these structures are in fact four-family dwelling houses and that therefore any original community scheme or plan limiting the dwellings to two families (if any such community scheme ever existed) was abandoned either by common acquiescence or by common breach. I will deal with this question later in this opinion. I have seen the exterior of all these buildings and on the occasion of a second visit to the properties I inspected the interior of several of them. They are all substantially alike. Each separate structure contains four independent family apartments or flats. Each flat has its own separate living room, dining room, bedrooms, kitchen and bathroom. True, there is a partition wall running from the basement to the roof and on each side of that partition wall are separate entrance doors to the apartments. But all four units have a common front entrance porch and a common chimney. When these structures were being erected there was some complaint made to the City Commission that the Fairmount Construction Company was erecting four-family houses, thereby exceeding the limit imposed by the terms of the deed. The then Corporation Counsel for the City of Newark was of the opinion that the existence of a partition wall made the four units into two two-family houses. No action was taken to compel compliance, and of the 122 such houses erected 92 were sold by the Fairmount Construction Company between 1947 and the date of the commencement of this suit. I cannot accept the argument that these structures are two-family houses. It is impossible to view the exterior and examine the interior without reaching the conviction that they are four-family houses and nothing else. I so hold.

As Fairmount's building project advanced, it began to experience difficulty in selling the houses. Veterans, the intended preferential beneficiaries of this housing development, found it difficult, if not impossible, to purchase or carry the burden of investment and ownership. Somewhere in the course of the argument it was stated and undenied that these four-family units were being sold at $42,000 per structure. With the Newark tax rate being what it is, of which the court may take judicial notice, and the financial capacity of veterans generally being limited, it is no little wonder that the Fairmount Construction Company realized that it was...