Molino v. Mayor and Council of Borough of Glassboro

• Decision Date: 27 July 1971
• Citation: 281 A.2d 401,116 N.J.Super. 195
• Parties: Angelo R. MOLINO, trading as Hollybush Gardens Apartments, Plaintiff, v. MAYOR AND COUNCIL OF the BOROUGH OF GLASSBORO, et al., Defendants.
• Court: New Jersey Superior Court

Page 195

116 N.J.Super. 195

281 A.2d 401

Angelo R. MOLINO, trading as Hollybush Gardens Apartments, Plaintiff, v. MAYOR AND COUNCIL OF the BOROUGH OF GLASSBORO, et al., Defendants.

Superior Court of New Jersey,

Law Division.

Decided July 27, 1971.

John R. Bennie, Camden, for the plaintiff.

Martin A. Herman, Woodbury, for defendant Planning Board of Borough of Glassboro (Herman, Pearson & Dubler, Woodbury, attorneys).

Harris Y. Cotton, Woodbury, for defendants Mayor and Council of Borough of Glassboro, Wesley Myers, and Robert Adams, (Falciani, Cotton, Chell & Stoinski, Woodbury, attorneys).

SCHALICK, A.J.S.C.

This is an action in lieu of prerogative writ brought by the plaintiff, Angelo R. Molino, a building contractor, against the Planning Board, the Borough Council, the Building Inspector, and the Zoning Officer of the Borough of Glassboro to invalidate an ordinance enacted on February 10, 1970, which amends the Borough Zoning Ordinance affecting apartment house construction. The plaintiff also seeks to compel the granting of site plan approval for plans to erect 172 garden apartment units which would constitute the second section of an existing, adjacent apartment complex known as Hollybush Gardens and to require the Borough officials to issue the necessary zoning and building permits for the project.

The plaintiff, during 1966, contemplated the building of an apartment project. In consultation with the government agency, a site was selected consisting of 17.5 acres on the west side of Delsea Drive in the borough. At the inception 324 garden apartment units were proposed, but meetings with the Planning Board narrowed the proposal to 252 units to meet local requirements.

In 1967, site plans for a 252 unit project were submitted to the Federal Housing Administration, but this agency would only finance at that time 80 units. A suggestion was made that if the accepted project proved successful, the remaining 172 units would then be considered. During the same year the Planning Board approved the 80 unit project as Hollybush Gardens, and zoning and building permits were issued.

In November 1969 section one was completed and occupied. Then the plaintiff secured approval from F.H.A. for section two, and in December 1969 site plan for section two was submitted to the Planning Board. On January 6, 1970, the Board returned the site plan to plaintiff's attorney for modification. On January 20, 1970, revised plans were returned for study. On February 10, 1970, the Borough Council enacted an Ordinance to amend the Zoning Ordinance with these pertinent provisions:

1. In any given garden apartment complex, at least 70 per cent of all units could have no more than one bedroom. No more than 25 per cent may have two bedrooms, and no more than 5 per cent could have three bedrooms.

2. Minimum floor space requirements: 750 sq. feet--one bedroom units, 900 sq. feet--two bedroom units, 1200 sq. feet--three bedroom units.

3. All electrical and utility wires must be beneath the surface of the ground.

4. Not more than 14 dwelling units could be erected on an acre.

5. Two off street parking spaces must be provided for each unit.

6. At least one automatic laundry washer and dryer must be provided for every eight bedrooms.

7. At least 8 sq. feet of swimming pool or tennis court space must be provided for every 100 sq. feet of living space.

8. Each apartment unit must have a central air-conditioning unit.

9. Each building must have a master T.V. antenna.

10. There must be at least two doorways to each apartment unit. There must be a separate stairway leading from each doorway in second story apartments.

11. Each apartment must have an automatic garbage disposal unit.

In addition to the foregoing, the ordinance also contained provisions which increased the minimum yard and frontage requirements, required certain kinds of landscaping, increased the fireproofing requirements, and required a planting screen as a buffer.

Two weeks after the Borough Council enacted the ordinance, the Planning Board rejected the site plan because of non-compliance with the new ordinance.

The plaintiff contends that in reliance upon the representation made to him by the officials that he had site plan approval to complete the development, and as a result he had the right to proceed despite the zoning change. He alleges that the 1967 application to the Planning Board resulted in full approval of the construction of the 172 units and thereby he was protected from further changes by this ordinance.

Another point of attack by the plaintiff was the allegation that the Planning Board did not act upon the site plan within 45 days after it was submitted, and the failure to act operated as an approval under N.J.S.A. 40:55--1.18.

The plaintiff also alleges that the statutory requirements for the adoption of the ordinance were not complied with as provided in N.J.S.A. 40:49--2 et seq., and such amendment is void.

One of the substantial points made by the plaintiff was that the ordinance is illegal and unconstitutional because its requirements were an unreasonable and arbitrary exercise of municipal power in that it was violative of sound zoning in the Borough of Glassboro.

If the plaintiff was granted approval for the entire project and in reliance on that approval he expended substantial sums to make improvements, the court must evaluate his position. The burden of proving the approval rests with the plaintiff. The court can only conclude that there was no approval of the 172 apartment units for no formal action was ever taken, and only the approval was given for section one. Considerable testimony was offered which never gained any strength to show full project approval but only embraced conversations with officials as to future intentions. The Planning Board and the Board deny that any such approval was given, or that the approval for section one was conditioned for further approval. It was admitted by all parties that there was no formal municipal action, and no testimony was offered which would cause the court to conclude that any such approval was supplied by the action of the parties. The plaintiff also fails to show that any substantial sums of money were expended for improvements which would sustain his contentions.

A review of our decisions indicates that the action upon which the developer is entitled to rely must be an official action or something that appears to be such by a municipal body or municipal officer which that body or officer had the legal right to undertake, and not merely informal communications. Tremarco Corp. v. Garzio, 32 N.J. 448, 161 A.2d 241 (1960); Gruber v. Mayor and Tp. Committee of Raritan Twp., 39 N.J. 1, 186 A.2d 489 (1962). The court has already resolved this question.

Moreover, the plaintiff testified that the construction of section two would be in excess of two and one-quarter million dollars, whereas the highest figure quoted, and that by the plaintiff himself, was an expenditure of $51,000.00 in reliance on the approval for additional improvements. Other testimony lessened this amount. Two per cent cannot be considered a substantial amount in relation to the project cost, particularly when the plaintiff did not begin actual construction. See Anderson, American Law of Zoning, Vol. 2, Sec. 6.23.

We then come to the question of the effect of the Planning Board's conduct from December 1969 until the adoption of the ordinance. The evidence fails to support the plaintiff's allegation that he secured approval by the Board by their failure to act as set forth in the statute. There was no final submission of plans which required such action, and when the Board could have acted, the zoning change prevented such approval.

The ordinance met all statutory requirements...