Houston Petroleum Co. v. Automotive Products Credit Ass'n

• Decision Date: 17 March 1952
• Docket Number: No. A--80,A--80
• Citation: 9 N.J. 122,87 A.2d 319
• Parties: HOUSTON PETROLEUM CO. v. AUTOMOTIVE PRODUCTS CREDIT ASS'N, Inc.
• Court: New Jersey Supreme Court

Page 122

9 N.J. 122

87 A.2d 319

HOUSTON PETROLEUM CO. v. AUTOMOTIVE PRODUCTS CREDIT ASS'N, Inc.

No. A--80.

Supreme Court of New Jersey.

Argued Feb. 18, 1952.

Decided March 17, 1952.

William C. Nowels, Maplewood, argued the cause for defendant-appellant (Stein & Stein, Jersey City, attorneys; Frederick Z. Feldman, Jersey City, on the brief).

Samuel Koestler, Elizabeth, argued the cause for plaintiff-respondent (Koestler & Koestler, Elizabeth, attorneys).

The opinion of the court was delivered by

BURLING, J.

This is a civil action. The plaintiff instituted the suit by complaint against the defendant in the Superior Court, Chancery Division, seeking the remedy of injunction for the enforcement of certain restrictive covenants relating to real property. After trial, the Superior Court, Chancery Division, entered judgment dismissing the complaint. 11 N.J.Super. 357, 78 A.2d 310 (Ch.Div.1951). The plaintiff pursued an appeal to the Superior Court, Appellate Division, 15 N.J.Super. 215, 83 A.2d 239 (App.Div.1951) and that court reversed and set aside the judgment of the Chancery Division. Thereupon the defendant filed a petition for certification with this court, which was granted. Houston Petroleum Co. v. Automotive Products Credit Association, Inc., 8 N.J. 248, 84 A.2d 669 (1951).

There is little controversy here as to the facts which became the foundation of this suit. The plaintiff in its complaint claimed, and the defendant in the pretrial order admitted that one Lotta D. Byrnes and others, partners trading as Byrnes Realty Company (hereinafter called Byrnes), being the owners of a tract of land (including the premises in question) located in the City of Linden, County of Union and State of New Jersey, on the northwesterly side of New Jersey State Highway No. 25 (also known as Edgar Road) entered into a certain agreement in writing with the City of Linden dated April 15, 1947, recorded April 17, 1947 in Book 1620 of Deeds for Union County at page 434, etc., which included the following pertinent language: 'Whereas, Byrnes Realty Company has applied to the Mayor and Common Council of the City of Linden, in the County of Union, to reclassify said premises so that the same shall come within and be subject to the provisions of Section 6--E (light industrial district) of the zoning ordinance of the said City of Linden; and whereas, Byrnes Realty Company in connection with its said application has agreed that said lands and premises if and when zoned as a light industrial district, shall be subject to the covenants and restrictions hereinafter set forth; * * *.'

The covenants and restrictions contained in the aforesaid agreement included a setback of 75 feet from the northerly line of the right-of-way of State Highway No. 25 and a provision that the area between the northerly line of the right-of-way of said highway and the setback line be 'seeded and suitably planted, excepting, however, such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed and used for driveways and parking space.'

It was further provided that said covenants and restrictions should become effective on the rezoning of the area as requested by Byrnes and continue in effect so long as the premises remained so zoned or until April 1, 1977, provided that they might be released or modified at any time by agreement in writing between the City of Linden and the owner or owners of all or all portions of said land and premises.

The City of Linden, by ordinance adopted on the same date (April 15, 1947) rezoned the Byrnes tract described in the above mentioned agreement to include said lands and premises in 'Section 6--E (light industrial district).' It is clear from the evidence introduced at the trial of this cause that this rezoning was effected on consideration of the making of the aforesaid agreement. It was also claimed and admitted that on March 29, 1948 Byrnes conveyed all the said tract, subject to the covenants and restrictions contained in the aforesaid agreement, to Industrial Land Corporation, which in turn on the same date and likewise subject to said covenants and restrictions conveyed all land and premises to Clifford J. Colville and others trading as Macner Realty Company (hereinafter referred to as Macner). In the pretrial order it was stipulated that the deeds for said conveyance contained the following language: 'This conveyance is made subject to * * * covenants and restrictions imposed upon said premises by a certain agreement made between the grantor and the City of Linden, dated April 15, 1947, * * *.'

It was further claimed and admitted that on July 1, 1949 Macner, then being owners of the entire tract, entered into an agreement in writing with the City of Linden modifying the agreement of April 15, 1947 as to a certain 300 feet of the frontage of said tract on State Highway No. 25, so as to relieve that portion of the tract of the setback and seeding and planting covenants and restrictions, and that this modification agreement was recorded on July 22, 1949.

Macner thereafter, by deed dated August 1, 1949 and duly recorded, conveyed the aforesaid portion of said tract which had been released from the restrictions to one Sand who subsequently conveyed the same portion to Houston Petroleum Co., a New Jersey corporation (hereinafter called the plaintiff); Macner also conveyed an adjoining portion of the tract, subject to restrictions and conditions of record, to the plaintiff on May 16, 1950. By deed dated June 12, 1950 and duly recorded, Macner conveyed, likewise subject to restrictions and conditions of record, to Automotive Products Credit Association, Inc., a New Jersey Corporation (hereinafter called the defendant) a portion of the Byrnes tract immediately adjoining the plaintiff's additional portion of the tract, aforesaid, and also fronting on State Highway No. 25. It was further admitted in the pretrial order that on July 11, 1950 the building inspector of the City of Linden granted the defendant a building permit for the construction upon its portion of the tract a large gasoline service station in conformity with plans and specifications which showed that the defendant intended to seed and plant less than 10 per cent of the land area, between the line of State Highway No. 25 and the 75-foot setback line, and to pave 90 per cent of the said land area with bituminous pavement and concrete slabs, in clear violation of the covenants and restrictions hereinabove quoted, and that the defendant commenced to place gasoline pumps on the premises in positions designated in the aforesaid plans.

The plaintiff filed its complaint in this cause on July 17, 1950 in the Superior Court, Chancery Division, seeking to have the defendant enjoined from violating the covenants and restrictions imposed on its said property by the aforesaid agreement of April 15, 1947 between Byrnes and the City of Linden, and by supplemental complaint filed October 5, 1950 sought a judgment in the nature of a mandatory injunction to require the defendant to remove such part of its construction as was violative of said covenants and restrictions. An interlocutory injunction was denied by the trial court on July 31, 1950. After trial final judgment was entered on January 29, 1951 in the Superior Court, Chancery Division, in favor of the defendant and dismissing the plaintiff's complaint. On the plaintiff's appeal to the Superior Court, Appellate Division, the judgment was reversed and remanded, on August 30, 1951, with direction that a mandatory injunction be issued directing the removal of the improvements violating the covenant. The defendant filed with this court its petition for certification to the Appellate Division to review said judgment of reversal, and said petition was granted resulting in this appeal as aforesaid.

The defendant asserted below and asserts here among its questions involved on appeal that the covenants and restrictions sought by plaintiff to be enforced are invalid and unenforceable for the reason, Inter alia, that the agreement of April 15, 1947, between Byrnes and the City of Linden constituted an abuse of the zoning power by the City, and was therefore Ultra vires, illegal and void. With this contention we agree.

The latest exposition of the law applicable to the foregoing conclusion is contained in V. F. Zahodiakin, etc., Corp. v. Zoning Board of Adjustment of City of Summit, 8 N.J. 386, 86 A.2d 127 (1952). This court there held, 8 N.J. at pages 394--395, 86 A.2d 127 that the zoning power may not be exerted to serve private interests merely nor may the principle be subverted to that end, that a purported contract so made was Ultra vires and all proceedings to effectuate it were Coram non judice and utterly void.

The same principle is implicit in the decisions of this court in Beckmann v. Township of Teaneck, 6 N.J. 530, at page 535, 79 A.2d 301 (1951) wherein the asserted authority of a municipality to contract for the exercise of legislative powers was denied by the court and Anschelewitz v. Borough of Belmar, 2 N.J. 178, 183, 65 A.2d 825, 827 (1949) wherein the court said: 'A municipality cannot act as an individual does. It must proceed in conformity with the statutes, or in the absence of statute agreeably to the common law, by ordinance or resolution or motion. * * * Especially is this so where real property is concerned. * * *'

Contracts thus have no place in a zoning plan and a contract between a municipality and a property owner should not enter into the enactment or enforcement of zoning regulations. See Bassett on Zoning, p. 184 (1940). Compare Speakman v. Mayor & Council of North Plainfield, 8 N.J. 250, 257, 84 A.2d 715 (1951); Lynch v. Hillsdale, 136 N.J.L. 129, 134, 54 A.2d 723 (Sup.Ct.1947), affirmed per curiam 137 N.J.L. 280, 59 A.2d 622 (E. & A.1948); N.J. Good Humor, Inc., v. Borough of Bradley Beach, 124 N.J.L. 162, 164--165, 168--169, 11 A.2d...