San-Lan Builders, Inc. v. Baxendale

• Decision Date: 03 November 1958
• Docket Number: SAN-LAN,No. A--15,A--15
• Citation: 145 A.2d 457,28 N.J. 148
• Parties: BUILDERS, Inc., a New Jersey corporation, Plaintiff-Respondent, v. William H. BAXENDALE, Building Inspector of the Borough of Palisades Park, and the Mayor and Council of the Borough of Palisades Park, a municipal corporation, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 148

28 N.J. 148

145 A.2d 457

SAN-LAN BUILDERS, Inc., a New Jersey corporation, Plaintiff-Respondent, v. William H. BAXENDALE, Building Inspector of the Borough of Palisades Park, and the Mayor and Council of the Borough of Palisades Park, a municipal corporation, Defendants-Appellants.

No. A--15.

Supreme Court of New Jersey.

Argued Sept. 23, 1958.

Decided Nov. 3, 1958.

Louis Eisenstein, Palisades Park, argued the cause for appellants (Eisenstein & Eisenstein, Palisades Park, attorneys).

Joseph M. Rotolo, Palisades Park, argued the cause for respondent (Peter S. Rotolo, Palisades Park, of counsel; Rotolo & Rotolo, Palisade, attorneys).

The opinion of the court was delivered by

HEHER, J.

We certified for appeal, 27 N.J. 156, 141 A.2d 828, the Appellate Division's affirmance, April 4, 1958, of a judgment of the Law Division of the Superior Court entered September 23, 1957 directing the issuance of a permit for the erection on plaintiff's lands situate on the southwest corner of Broad Avenue and West Harwood Terrace in Palisades Park, New Jersey, in a "B' Business' district delineated by the local zoning ordinance, of what is described in the complaint as 'a five-story building consisting of 23 apartments with two stores on the first story,' fronting on Broad Avenue, and in the stipulation of facts presented on plaintiff's motion for summary judgment as 'the proposed apartment building.'

The proceeding is in the nature of Mandamus for the enforcement of what is deemed by the landowner to be its absolute right. The municipality maintains that the proposed building would not comply with the minimum side-yard and rear-yard setbacks and maximum lot-coverage requirements for 'apartment houses' under the zoning ordinance, then and now; and this, in turn, concerns the meaning of the particular regulation and the effect of two amendments of the ordinance, the first made August 13, 1957, just prior to the argument of plaintiff's motion for summary judgment, and the second on September 9, 1958, subsequent to our certification of the cause for appeal but before oral argument here.

The site has a frontage of 101 feet on the westerly side of Broad Avenue, 'a depth of 110.99 feet on the southerly boundary line and a depth of 96.23 feet on the northerly boundary line which is the southerly line of West Harwood Terrace, and a width of 100 feet in the rear boundary line.'

The essential facts follow: the 'B' business district 'extends westerly in depth the length of plaintiff's property'; there 'is no existing one-family, or two-family, or group house, or garden-type apartment, or multiple family dwelling, adjacent to the south' of the plot; there is 'only one other building on the same side of Broad Avenue, in the same block,' a building 'erected on the front property line of said street, so that no front-line setback would be required' for the planned structure under the Limiting Schedule of the ordinance; the lands to the west, on either side of West Harwood Terrace, are devoted to 'one- and two-family' dwelling uses, and there is a one-family dwelling to the rear of the particular parcel; the building would not exceed in coverage 90% Of the lot area, but would cover more than 50% Of such area, and there would 'not be a rear-yard setback of 25 feet nor aggregate side-yard setbacks of 20 feet.'

These are the pertinent definitive clauses of the zoning ordinance of 1939, as amended:

Section 4:

'(6) 'Apartment House'--A dwelling designed for the use of more than eight (8) families and unlimited in size and occupancy except under the terms of this ordinance.'

'(18) 'Dwelling'--Any building which is designed for or occupied in part or in whole as a house, residence, or sleeping place for one or more persons, either permanently or transiently.'

The regulations and restrictions are embodied in section 5:

'(B) 'A' Districts--Residence:

'Within the districts designated as 'A' districts no building or area shall be used in whole or in part, and no dwelling shall be erected, altered or used except a single family dwelling, a two family dwelling, a multiple family dwelling, a group house, a garden-type apartment, or an apartment house, which dwelling shall conform to the requirements of the 'Limiting Schedule' annexed hereto and made a part hereof.'

The Limiting Schedule to 'A' follows:

'(a) Maximum building coverage of lot--50%;

'(b) Minimum rear yard setback--25 feet;

'(c) Minimum aggregate sideyard setbacks--20 feet.'

Section 5 continues thus:

'(C) 'B' Districts--Business:

'Within the districts designated as 'B' districts no buildings or areas shall be used in whole or in part, and no building shall be erected, altered, remodeled or used, except a building for the purpose of trade or business, which building shall conform to the requirements of the 'Limiting Schedule' annexed hereto and made a part hereof.

'Property in 'B' districts may be used for any use permitted in 'AA' or 'A' districts.

'Where a building conforming to the requirements of a more restricted district is erected in a less restricted district, all the restrictions of the more restricted district shall apply.

'Nothing in this section shall be deemed to exclude the erection of a building containing a store or stores on the ground floor, with living quarters above the store, provided said living quarters shall not extend beyond four (4) stories above said store or stores.'

By the amendment of August 13, 1957, all areas theretofore designated on the zoning map 'as district 'A-Residential" were reclassified as 'district 'AA-One and Two Family Residential,' subject to all of the uses and restrictions thereof,' except for certain areas therein continued 'as 'A-Residential' districts.'

And it was therein also provided, section 3:

'No apartment building in an 'A-Residential' district shall exceed two and one-half stories or thirty-five feet in height, and the Limiting Schedule contained in the Zoning Ordinance aforementioned, is hereby amended accordingly; provided, however, that such height limitation shall not be applicable to structures in B, C or D districts.'

Under the Limiting Schedule to 'B' a lot coverage of 90% Is permissible for corner lots, and the building in view satisfies this condition.

The landowner's contention is that the proposed building 'is not an 'apartment house" within the intendment of the zoning ordinance of 1939, but rather a " business district building' containing two stores on the ground floor with living quarters for twenty-three families above (the) stores,' and such a building is permissible 'in a 'B-Business' District' if erected 'in accordance with the restrictions of the limiting schedule applicable to the 'B-Business' District,' but 'could not be erected in the more restricted districts of 'AA' and 'A'-Residential Districts' and it 'therefore does not conform to the requirements of these more restricted districts and need not comply with the restrictions applicable to such more restricted districts'; and that the amendment of the ordinance adopted August 13, 1957, before the entry of the Law Division's judgment, sanctions such a building in a 'B' business district and 'the requirements of the limiting schedule for' the business district would apply.

It is the insistence of the municipality that the 'proposed apartment building' is "a building conforming to the requirements of a more restricted district' as that term is used in the (original ordinance of 1939), and must therefore comply with the rear and side yard and lot coverage restrictions for apartment houses established by the Limiting Schedule of the ordinance'; and neither the 'final paragraph' of section 5(C) of the ordinance nor the amendment of August 13, 1957 relieves plaintiff of the duty of compliance with these 'restrictions applicable to apartment houses.'

The holding of the Appellate Division was that 'a five story (apartment) building with stores on the first level' is permissible in a 'B' business district under the last paragraph of section 5, subject to the 'business district limitations with which (the) plaintiff is admittedly in conformity'; that under the zoning amendment of August 13, 1957, effective prior to the argument in the Law Division of the motion for judgment, 'apartments exceeding 2 1/2 stories in height were forthwith rendered not permissible in an 'A-Residential' zone, referred to above as '(B) 'A' Districts Residence," provided 'that such height limitations shall not be applicable to structures in B, C or D districts'; that 'while (the) litigation was pending,' the local governing body 'did not eliminate the doubt of the (last) paragraph' of section 5, supra; and that if it had been repealed, plaintiff 'would have no basis for appeal,' citing Roselle v. Moonachie, 48 N.J.Super. 17, 136 A.2d 773 (App.Div.1957),...