Roselle v. Wright

• Decision Date: 01 November 1955
• Docket Number: No. L--7605,L--7605
• Citation: 37 N.J.Super. 507,117 A.2d 661
• Parties: Pietro ROSELLE et al., Plaintiffs, v. Thomas WRIGHT, Jr., Building Inspector, etc., et al., Defendants. . Law Division
• Court: New Jersey Superior Court

Page 507

37 N.J.Super. 507

117 A.2d 661

Pietro ROSELLE et al., Plaintiffs, v. Thomas WRIGHT, Jr., Building Inspector, etc., et al., Defendants.

No. L--7605.

Superior Court of New Jersey.

Law Division.

Nov. 1, 1955.

Budd, Larner & Kent, Newark, attorneys for plaintiffs.

Louis Bort, Livingston, attorney for defendants.

EWART, J.S.C.

By this suit in lieu of the former prerogative writ of Mandamus, plaintiffs seek judgment compelling defendants to issue a building permit for the erection of a one-story masonry garage building 37 feet in width by a depth of 70 feet on plaintiffs' lands situate on McClellan and Franklin Avenues in the Township of Livingston, Essex County.

In a former suit between the same parties for the same purpose (Docket L--10468--53 P.W.) a judgment adverse to the plaintiffs was entered March 29, 1955 on the ground that the earlier application for the building permit, together with the plans and specifications submitted therewith, did not meet the requirements of the township zoning ordinance in that (1) an addition on the rear of the proposed garage, 8 feet in width by 14 feet in length, designed to house a boiler and the toilets, would extend to or across the line of the residential zone, leaving no side yard whatever between the proposed building and the line of the residential zone although the ordinance required a seven-foot side yard, and (2) the proposed main garage building, shown on the plans as 39 feet in width, plus a seven-foot side yard as required by the zoning ordinance, could not possibly be squeezed into the 45 foot wide portion of plaintiffs' lot located within the business zone without either trespassing upon the adjoining Luciano property or encroaching for some distance onto the required seven-foot wide side yard. In the former suit, at the final hearing plaintiff proposed to obviate those objections by filing amended plans and specifications, eliminating altogether from the proposed main garage building the rear addition 8 by 14 feet and by providing for a main building less than 39 feet in width. Inasmuch, however, as such suggested amended plans had never been submitted to or passed upon by the township authorities, the court declined to enter any conditional judgment in favor of the plaintiff, based on the suggestion that the plans would be amended to meet the requirements of the ordinance.

There is little or no dispute as to the facts of the controversy. Based upon the pretrial order, the exhibits, and proofs taken before me, I find the essential facts in the present suit to be as follows:

Plaintiffs were and are the fee owners of an L-shaped lot having a frontage of 105.40 feet along the northwesterly side line of McClellan Avenue; a depth of 269.20 feet along the southeasterly side line of McCall Avenue; and a frontage of approximately 136.62 feet along the northeasterly side line of Franklin Avenue in the Township of Livingston, Essex County. Of the Franklin Avenue frontage, a portion 45 feet in width adjacent to the property of one Luciano is located within the business zone established by the township zoning ordinance, the balance of the Franklin Avenue frontage being located within the residential zone. This strip 45 feet in width fronting on Franklin Avenue extends northwestwardly from Franklin Avenue for a depth of approximately 200 feet to the southeasterly side line of McCall Avenue (Franklin and McCall Avenues being parallel one to the other), and all that portion of the plaintiffs' lot extending southeastwardly from the 45-foot strip out to McClellan Avenue, for a distance of approximately 120 feet also lies within the business zone established by the zoning ordinance.

On April 4, 1955 plaintiffs filed with the township building inspector an application, together with the requisite plans and specifications, seeking a permit for the erection of a one-story masonry garage building of a width of 37 feet by a depth of 70 feet and designed to house four or five garbage trucks in use by a company, or partnership, in which some but not all of the plaintiffs were interested. The application, plans and specifications met the requirements of the zoning ordinance of the township as it existed at the time of the filing of the said application on April 4, 1955.

By the terms of a planning board ordinance of the said township adopted June 21, 1954, the planning board was designated as the referral agency to the township committee in administering the provisions of the land subdivision ordinance of the township in accordance with the provisions of L.1953, c. 433 (R.S. 40:55--1.14, N.J.S.A.) and in addition that ordinance referred to the planning board for hearing, consideration and recommendation to the township committee all applications for construction or erection of any structure in the business district zone. That portion of the plaintiffs' property upon which they desire to erect the said garage building is located within the said business district and is adjacent to the residential district.

By an amendment to the zoning ordinance of the township, introduced subsequent to the filing of the plaintiffs' application on April 4, 1955, and finally adopted May 31, 1955, quite numerous changes were made with respect to structures in the business district. In the ordinance as amended May 31, 1955, a private garage is defined as one used as an accessory to a main building or dwelling with a capacity for the storage of not more than three motor vehicles and in which no occupation or business for profit is carried on; a public garage is defined as any premises, excepting those answering the description of a private garage or storage garage, available to the public for the storage, care or repair of motor vehicles; and a storage garage is defined as any premises, excepting those described as a private garage or a public garage, used exclusively for the storage of motor vehicles. The amendment of May 31, 1955 to the zoning ordinance enumerates some 27 different structures and uses which are prohibited in the business zone, including specifically 'storage garages,' although both private and public garages are permitted in said business zone. Prior to adoption of the amended ordinance on May 31, 1955, storage garages as such were not prohibited in the business zone. And by the said amendment of May 31, 1955 the required side yard between a building erected in the business zone and the line of the residential zone is enlarged from seven to nine feet. Further, by the said amendment of May 31, 1955 a new requirement is made that every building thereafter erected in the business zone must face or front upon a main street and main streets for the purpose of the ordinance are named as Livingston Avenue, McClellan Avenue, Mount Pleasant Avenue, Northfield Road, South Orange Avenue and State Highway Route No. 10 (Franklin Avenue upon which plaintiffs' 45 foot wide lot fronts not being included in the designation of 'main streets').

Under the proofs in this case, I find that plaintiffs' proposed building is a 'storage garage' within the definition of the amended ordinance of May 31, 1955.

The plans submitted with plaintiffs' application for a permit show the location of the proposed garage building on this 45 foot lot in the business zone fronting on Franklin Avenue with the rear of the proposed garage building nearest to Franklin Avenue and set back 25 feet from the property line along Franklin Avenue, set back 50 feet from the center line of Franklin Avenue (both required by the zoning ordinance), and with a side yard between the proposed garage building and the line of the residential zone of a minimum of seven feet; no doors shown in the rear of the garage building giving access to Franklin Avenue and with access to the front of the garage, being the part of the building most distant from Franklin Avenue, by means of a proposed 30 foot wide private driveway extending across that portion of the plaintiffs' property that lies within the business zone from the front of the garage out to McClellan Avenue.

Plaintiffs' application for the building permit, filed April 4, 1955, first came to the attention of the planning board at a meeting of the board held April 12, 1955. Plaintiffs' counsel attended that meeting of the planning board and urged action on the application at an early date, but no action was ever taken by the planning board other than to refer the matter to the township solicitor for advice. In the meantime and on May 9, 1955 this present suit was instituted by complaint filed in the clerk's office. By the terms of the planning board ordinance referred to above and adopted June 21, 1954, the board was required to act on such applications within 45 days after the filing of such application with the secretary of the planning board.

The proposed amendment to the zoning ordinance, afterwards finally adopted on May 31, 1955, was first considered informally by the planning board at a meeting held April 26, 1955. The planning board approved it at a meeting held May 24, 1955, prior to its adoption by the township committee. Said amendment to the ordinance was first introduced before the township committee on May 16, 1955. Neither the building inspector, with whom the application was filed, nor the planning board, ever notified the plaintiffs of any action taken on the application for the permit.

Prior to the amendment adopted May 31, 1955, the zoning ordinance listed ten prohibited structures or uses in the business zone, whereas the amendatory ordinance enlarges the prohibited uses and structures to 27.

Plaintiffs contend that not only are the lands upon which they propose to erect the garage building located in a business district established by the zoning ordinance, but that the zoning ordinance as it existed at the time the application was filed on April 4, 1955 permits the said structure and the use contemplated by the plaintiffs, and that the...