Roselle v. Mayor and Council of Borough of Moonachie

• Decision Date: 06 December 1957
• Docket Number: No. A--557,A--557
• Citation: 136 A.2d 773,48 N.J.Super. 17
• Parties: Salvatore ROSELLE, Plaintiff-Respondent, v. The MAYOR AND COUNCIL OF the BOROUGH OF MOONACHIE, a municipal corporation in the County of Bergen and State of New Jersey, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 17

48 N.J.Super. 17

136 A.2d 773

Salvatore ROSELLE, Plaintiff-Respondent, v. The MAYOR AND COUNCIL OF the BOROUGH OF MOONACHIE, a municipal corporation in the County of Bergen and State of New Jersey, Defendants-Appellants.

No. A--557.

Superior Court of New Jersey Appellate Division.

Argued Nov. 25, 1957.

Decided Dec. 6, 1957.

Joseph M. Lynch, Princeton, argued the cause for defendants-appellants (Guy W. Calissi, Hackensack, attorney).

Seymour Gelzer, Hackensack, argued the cause for plaintiff-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

The plaintiff and the defendants have been in controversy since January 1956 over plaintiff's desire to operate a trailer camp or 'park' on property he owns in the Borough of Moonachie. Plaintiff applied to defendants for a license for such an operation January 26, 1956. Defendants denied it, and, on February 23, 1956, adopted an amendment to the municipal zoning ordinance prohibiting all trailer parks or camps in the borough. Plaintiff was successful in having the Law Division of the Superior Court 'set aside' the amendment by judgment dated December 14, 1956 and filed December 28, 1956. The judgment denied, however, a concomitant application for an order directing the borough officials to issue plaintiff a trailer camp license; this, apparently, for failure to comply with sanitary requirements. Plaintiff appealed.

Subsequently plaintiff made the necessary arrangements to comply with sanitary regulations of the state and municipal authorities and renewed his application for the license. It was again denied by resolution of the defendant governing body January 24, 1957, and, on January 28, 1957, defendants filed a cross-appeal to the Appellate Division from the judgment dated December 14, 1956.

On February 5, 1957 plaintiff filed a new proceeding in lieu of prerogative writs in the Superior Court, Law Division, to compel the issuance of the license. An order to show cause why the relief sought by the complaint should not be granted was entered, and, after hearing, resulted in an order dated February 27, 1957, which in effect was a final judgment, directing defendants to issue the license pursuant to an ordinance of the borough regulating and licensing trailer parks. No appeal from this order has ever been taken by defendants. Instead, with the indorsed consent of the attorney for plaintiff, they obtained a stay order of the February 27, 1957 order on the same day which recited that the stay was to be effective 'only until March 4, 1957, at which time the parties have scheduled argument before the Appellate Division * * *.' On March 4, 1957 the Appellate Division granted a stay of the judgment which had been dated December 14, 1956. No further stay of the order of February 27, 1957 was ever obtained.

At a meeting of the governing body on February 28, 1957, the court order of February 27 was read and discussed and a motion to comply with it was defeated, four votes to two. At the same meeting a new amendment to the zoning ordinance was introduced and passed and adopted on first reading. This prohibited any dwellings, generally, or any 'structure that has the character of a dwelling such as trailers, tents and shacks * * *' in any heavy industrial zone. Plaintiff's property is in such a zone. The amendment became effective May 2, 1957.

On April 12, 1957 the plaintiff filed a motion, returnable April 19, to hold the defendants in contempt for failure to obey the Law Division order of February 27, 1957. On May 1, 1957 the defendants countered with a motion to vacate the order of February 27 on the ground that to grant the permit would be contrary to the ordinance of the borough effective by the time of the return date of the motion. On May 7, 1957 the Appellate Division dismissed defendants' cross-appeal from the December 14, 1956 order for lack of prosecution and vacated the stay, the plaintiff having previously withdrawn his appeal from that order.

After hearing, on affidavits, the Law Division, on May 27, 1957, ordered the defendant councilmen who had voted against compliance with the February 27 order 'held in contempt of the order * * *,' and further ordered them to appear before the court for 'further proceedings in this contempt action' on June 7, 1957 unless the borough within ten days appealed from the order or complied with the terms of the February 27 order.

The motion of defendants to set aside the order of February 27, 1957 was denied by an order dated June 21, 1957 which recites that the action is for reasons 'more particularly set forth in the opinion delivered by the Court on the 24th day of May, 1957.' No written or other such opinion appears in the appendix. We are informed there were oral remarks by the court but we have no information as to their substance.

We have before us for consideration appeals by defendants from both the order adjudicating the contempt and that denying the application to set aside the order of February 27, 1957. They are discussed in the inverse order.

I.

Defendants invoke the principle that the status of the law in respect to the validity of the use of property for a particular purpose is to be determined as of the time the court is called upon to act, rather than when the property owner applied for official permission to make the use. This is the general rule. Stalford v. Barkalow, 31 N.J.Super. 193, 106 A.2d 342 (App.Div.1954); Guaclides v. Borough of Englewood Cliffs, 11 N.J.Super. 405, 78 A.2d 435 (App.Div.1951); Tice v. Borough of Woodcliff Lake, 12 N.J.Super. 20, 25, 78 A.2d 825 (App.Div.1951); Socony-Vacuum Oil Co. v. Mount Holly Tp., Inc., 135 N.J.L. 112, 117, 51 A.2d 19, 169 A.L.R. 579 (Sup.Ct. 1947). They argue that when their application to have the February 27, 1957 order set aside was returnable (May 3, 1957) there was in effect a presumably valid ordinance, that which became effective May 2, 1957, precluding the lawful use of the subject property for trailer camp purposes, and that this state of affairs called for vacation of the earlier order since compliance therewith after May 2, 1957 would have entailed a violation of a subsisting municipal ordinance. We think the position is well taken.

As was stated in Tice v. Borough of Woodcliff Lake, supra (12 N.J.Super. at page 25, 78 A.2d at page 827):

'A valid, applicable and subsisting ordinance precluding plaintiffs' planned project would be a bar in the Law Division to the relief sought by plaintiffs. The decision determining the cause is controlled by the ordinance in effect at the time of the decision and not by the ordinance which was operative when the permit was sought.'

The rule goes so far as to compel an appellate court to give superseding effect to an ordinance adopted in the interim between a trial judgment and the appellate determination. See Socony-Vacuum Oil Co. v. Mount Holly Tp., Inc., supra (135 N.J.L. at page 118, 51 A.2d at page 23).

The present proceedings do not involve any substantive attack upon the May 2, 1957 zoning amendment and the trial court was controlled by it in determining whether plaintiff still had a substantive right to have a license issued to him by the defendants as of that time. Plaintiff's position in that regard is not improved by the fact that the mandatory order of February 27, 1957 antedated the effective date of the new zoning amendment. That order was stayed with his consent immediately, and the March 4, 1957 stay by the Appellate Division in the prior appeal, which remained in effect until its vacation on May 7, 1957, operated to keep the February 23, 1956 prohibitory zoning amendment in effect as against any right by plaintiff to have a license from the defendants during that period. We are therefore not confronted with any problem as to whether plaintiff acquired any vested right in the nature of a non- conforming use prior to the adoption of the new zoning amendment, and no such contention is here argued. The order entered June 21, 1957 must therefore be reversed to the end that an order be made vacating the order of February 27, 1957.

II.

It does not follow from the foregoing determination, however, that defendants are entitled to a nullification of their adjudication in contempt of the February 27, 1957 order. It has been noted that no appeal was ever taken from that order nor was its effectiveness as a command of the court stayed beyond the initial stay which expired March 4, 1957. The stay obtained on that day from the Appellate Division as to the judgment of December 14, 1956 did not purport to relieve defendants from complying with the mandate of the February 27, 1957 order. But defendants contend that the same considerations to which we have referred above, in connection with the continued effectiveness of the February 23, 1956 zoning prohibition on and after...