Jantausch v. Borough of Verona

• Decision Date: 12 July 1956
• Docket Number: No. L--4597--55,L--4597--55
• Parties: Arthur J. JANTAUSCH and Ann M. Jantausch, Plaintiffs, v. BOROUGH OF VERONA, a municipal corporation of New Jersey, and Verona Board of Adjustment, New Jersey, Defendants. P.W. . Law Division
• Court: New Jersey Superior Court

Page 89

41 N.J.Super. 89

124 A.2d 14

Arthur J. JANTAUSCH and Ann M. Jantausch, Plaintiffs, v. BOROUGH OF VERONA, a municipal corporation of New Jersey and Verona Board of Adjustment, New Jersey, Defendants.

No. L--4597--55 P.W.

Superior Court of New Jersey Law Division.

July 12, 1956.

John W. Lebeda, Caldwell, for plaintiffs.

William J. Camarata, Montclair, for defendants (Fred G. Stickel, III, Newark, of counsel).

WEINTRAUB, J.S.C.

Plaintiffs obtained from the building inspector a permit for the alteration of their home and the operation of a beauty salon therein. Property owners within 200 feet appealed to the board of adjustment, which, after hearing, determined that the issuance of the permit 'for the use disclosed was in error' and revoked 'this permit insofar as the use for a beauty salon is concerned.' Plaintiffs thereupon instituted the present action in lieu of prerogative writ to review the decision of the board.

The zoning ordinance, adopted in 1939, established four one-family residential districts. Section 6.1, applicable to all residential districts, provides:

'6.1 General Provisions--Use

'Within any one-family residence district no buildings shall be erected or altered or used in whole or in part for any other than the following specified purposes:

'6.11 Single detached house used as a residence by not more than one family.

'6.12 A residence containing the professional office of its resident owner or lessee.

'6.13 Home occupations incidental to the use as a residence, provided that such occupations shall be conducted solely by resident occupants of the building, and that no display of products shall be visible from the street.

'6.14 A church or any place of worship, including parish house or Sunday School Building.

'6.15 Buildings used for private horticultural or agricultural purposes, private garages or stables, and private dog kennels.'

The word 'profession' is defined in section 2:

'Profession. Includes the following: physician, surgeon, dentist, osteopath, chiropractor, lawyer, real estate or insurance broker, architect and civil, electrical, mechanical or industrial engineer.'

The ordinance does not define 'home occupations.'

Conceiving the contemplated beauty culture activity would constitute a home occupation, plaintiffs sought the permit, and the building inspector, being of a like view, issued it.

The property is in One-Family Residence District B. The dwelling is a split-level, one-family house with a two-car garage, physically at ground level beneath the bedrooms in the second story of the home.

The application for the permit disclosed the purpose to divide the two-car garage into a one-car garage and a beauty salon; the salon to be divided into a reception room, with two booths with chairs, two sinks and stools, lavatory, and beauty salon equipment. The exterior changes consisted of the removal of the large overhead door, the substitution of an overhead door for the one-car garage and, in the words of the board of adjustment, 'the installation of an attractive colonial style door for the salon portion.' The alterations have in fact been completed in accordance with the filed plans.

I.

At the hearing before the board of adjustment evidence was offered that plaintiffs expended some $3,000 on the strength of the permit, and that some of the appellants were aware of the proposed use and the alterations during their progress and failed to express dissent, although the proof does not indicate their acquiescence. On this basis, plaintiffs urge the permit may not be revoked. At the pretrial conference the existence of the issue was challenged by defendants. Plaintiffs had complained in the general form annexed to the rules of court (Form 35) which is silent as to specific challenges, and assumed the issue of estoppel could thus be projected. The suggested form at most embraces issues within the jurisdiction of the board, and estoppel would not seem to be among them. Yet a party attacking the action of a board of adjustment may join other appropriate claims for relief, as, for example, a claim that the ordinance itself is invalid, and since our settled policy is to adjudge all cognate disputes in a single action and the borough itself is a party defendant, I permitted the issue of estoppel to be included in the pretrial order. Dolan v. DeCapua, 16 N.J. 599, 109 A.2d 615 (1954).

Our cases clearly settle the controlling principles at the extreme poles of the problem. Where the permit is regularly issued in accordance with the ordinance, it may not be revoked after reliance unless there be fraud. Grossman v. Mayor, etc., Jersey City, 6 N.J.Misc. 688, 142 A. 558 (Sup.Ct.1928); Citizens Holding Co. v. Board of Adjustment of the City of Newark, 7 N.J.Misc. 61, 144 A. 329 (Sup.Ct.1929); Lehigh Valley R.R. v. Mayor, etc., Jersey City, 7 N.J.Misc. 154, 144 A. 578 (Sup.Ct.1929), affirmed o.b. 106 N.J.L. 248, 147 A. 555 (E. & A. 1929); Freeman v. Hague, 106 N.J.L. 137, 147 A. 553 (E. & A. 1929); Kornylak v. Hague, 8 N.J.Misc. 481, 150 A. 669 (Sup.Ct.1930); Horwitz v. Jones, 12 N.J.Misc. 375, 171 A. 552 (Sup.Ct.1934). On the other hand, where there is no semblance of compliance with or authorization in the ordinance, the deficiency is deemed jurisdictional and reliance will not bar even a collateral attack after the expiration of time limitation applicable to direct review. Lynch v. Borough of Hillsdale, 136 N.J.L. 129, 54 A.2d 723 (Sup.Ct.1947), affirmed o.b. 137 N.J.L. 280, 59 A.2d 622 (E. & A. 1948); V. F. Zahodiakin Engineering Corp. v. Zoning Board of Adjustment of City of Summit, 8 N.J. 386, 86 A.2d 127 (1952) Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R.2d 1125 (1953); cf. State v. Yaccarino, 3 N.J. 291, 70 A.2d 84 (1949), and Morris v. Borough of Haledon, 24 N.J.Super. 171, 93 A.2d 781 (App.Div.1952). And reliance in such circumstances has been held not to constitute a special reason within R.S. 40:55--39(d), N.J.S.A. Keller v. Town of Westfield, 39 N.J.Super. 430, 121 A.2d 419 (App.Div.1956); cf. Dolan v. DeCapua, supra (16 N.J. at page 610, 109 A.2d 615).

But what of the intermediate situation in which the administrative official in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon? The Dictum in favor of estoppel contained in Freeman v. Hague, supra (106 N.J.L. at page 140, 147 A. 553) perhaps falls in this area. Cf. Sun Oil Co. v. Clifton, 16 N.J.Super. 265, 269, 84 A.2d 555 (App.Div.1951), and Kurowski v. Board of Adjustment of Bayonne, 11 N.J.Super. 433, 440, 441, 78 A.2d 429 (App.Div.1951). In Adler v. Department of Parks and Public Property, Township of Irvington, 20 N.J.Super. 240, 89 A.2d 704 (App.Div.1952), however, a permit was held revocable notwithstanding that the barrier to its validity depended upon the resolution of an issue of construction, which, although ultimately not too debatable, yet was sufficiently substantial to render doubtful a charge that the administrative official acted without any reasonable basis or that the owner proceeded without good faith.

On the other hand, in Marini v. Borough of Wanaque, 37 N.J.Super. 32, 116 A.2d 813 (App.Div.1955), the court held the review to be out of time and rejected the contention that the issuance of the permit could be attacked collaterally out of time, saying (p. 40) that 'If anything, it was a mistaken or irregular exercise of a ministerial function' rather than action which is utterly void as in V. F. Zahodiakin Engineering Corp. After thus concluding that time barred the attack, the court additionally found laches in the period of delay after full knowledge. That case involved a building ordinance rather than a zoning ordinance but the difference would not seem to be a telling one.

I have no doubt as to the good faith of plaintiffs and the building inspector. Additionally, whether the building inspector's view of the ordinance was sound or not it cannot be said to be unreasonable. There should be some point at which the owner of property who acts in such circumstances becomes secure. Proceedings for a declaratory judgment would serve that end but, realistically, resort to litigation is cumbersome in this context. The line drawn must, however, give due consideration to the rights of other property owners, and in the light thereof it probably should not be drawn at any point prior to the expiration of the right to appeal. Even here a difficulty lies in the absence of statutory provision for notice to neighboring property owners of an application for a permit, and hence the fairness of this approach may be questionable. See Adams v. Jersey City, 107 N.J.L. 149, 151 A. 863 (E. & A. 1930), and Holloway v. Township of Pennsauken, 12 N.J. 371, 375, 97 A.2d 141 (1953). At any rate, the appeal to the board of adjustment was, according to the stipulation of the parties, within time. This being so, reliance upon the permit in the intervening period should not suffice to sustain a plea of estoppel. Nor should laches be found in such circumstances. It may be added that proof of laches as to some appellants to the board could not bind other affected property owners and hence a finding of laches as to some would be of no practical significance.

II.

Defendants urge the issue to be whether the determination of the board of adjustment was arbitrary, capricious or unreasonable. The asserted test obtains only where the board's action under R.S. 40:55--39, N.J.S.A., involves administrative expertness and the exercise of powers essentially administrative. See, for example, Tomko v. Vissers, 21 N.J. 226, 121 A.2d 502 (1956); Beirn v. Morris, 14 N.J. 529, 103 A.2d 361 (1954); Cummins v. Board of Adjustment of the Borough of Leonia, 39 N.J.Super. 452, 121 A.2d 405 (App.Div.1956). Review is thus limited in such cases in harmony with the traditional approach that the judiciary will not...