Scharf v. Bor. Of Ramsey

• Decision Date: 28 February 1946
• Docket Number: Nos. 405, 406.,s. 405, 406.
• Citation: 134 N.J.L. 67,46 A.2d 48
• Parties: SCHARF v. BOROUGH OF RAMSEY et al.
• Court: New Jersey Supreme Court

134 N.J.L. 67

46 A.2d 48

SCHARF

v.BOROUGH OF RAMSEY et al.

Nos. 405, 406.

Supreme Court of New Jersey.

Feb. 28, 1946.

Suit by Morris N. Scharf against the Borough of Ramsey and others for a declaratory judgment of rights with respect to the continuation of a nonconforming use of a structure. From an order denying defendants' motion to strike the complaint, defendants appeal. Presented also for consideration was an order to show cause obtained by plaintiff after he had been charged in the Criminal District Court with violation of a zoning ordinance.

Appeal dismissed; order to show cause discharged.

October term 1945, before CASE, BODINE, and PERSKIE, JJ.

Morris N. Scharf, of Ramsey, pro se (John W. Ockford, of Union City, of counsel), for plaintiff.

Romeo R. Napolitano, of Ramsey (James A. Major, of Hackensack, of counsel), for defendants.

PERSKIE, Justice.

These consolidated cases, styled on petition for a declaratory judgment and on certiorari, present two orders sought to be reviewed. Each order has for its source plaintiff's asserted right to his continuation of the non-conforming use of his building or structure, R.S. 40:55-48, N.J.S.A., as a two-family housekeeping unit.

On March 10, 1936, the Borough of Ramsey enacted a Zoning ordinance. The premises in question, No. 20 Franklin Terrace, was designated to be in Zone ‘A’ Residence which restricts, as far as is here pertinent, the continuation or use of any building or structure to a single detached house used as a residence for one housekeeping unit. The building erected on the lot was originally a one story and a half frame barn used for the housing of carriages, horses, cows and chickens. Some time in 1920 the northerly half of the building was converted into a one-family dwelling and as such was so occupied for a period of over 20 years. The southerly half of the building was not altered or re-modeled and remained substantially in its original state and condition up to the time the premises were purchased by the plaintiff.

On October 10, 1942, the plaintiff purchased the said premises. On or about February 3, 1943, he made application to Charles W. Eidel, Building Inspector of the Borough, for a permit to make certain minor alterations to the premises. The request was granted by the Building Inspector because he erroneously conceived the premises to be in an area zoned for business. Plaintiff proceeded to alter the southerly portion of the building. When it was completed and ready for occupancy the plaintiff made application to the Zoning Commission for an exception to the ordinance so that he could convert the structure into a two-family dwelling. Objections were filed by adjoining property owners and the plaintiff withdrew his application. He thereafter applied to the Zoning Board for a certificate of non-conforming use but subsequently withdrew this application.

On July 16, 1943 the plaintiff was advised by the Building Inspector that the Zoning Board ruled that the Inspector erred in issuing the permit to the plaintiff and that a violation of the Zoning ordinance existed by reason of the use of the premises as a two-family dwelling. Cf. Dickinson v. Plainfield, 13 N.J.Misc. 260, 265, 176 A. 716, affirmed 116 N.J.L. 336, 184 A. 195. The plaintiff was given until August 20, 1943 to remove the violation. On August 17, 1943 a summons was issued and served on the plaintiff for the violation of the Zoning ordinance as aforesaid, but the Borough did not cause a complaint to be filed nor did it proceed further in the matter at that time.

On October 22, 1943, the plaintiff instituted suit in the Supreme Court, Bergen County Circuit, for a declaratory judgment, R.S. 2:26-69, N.J.S.A., to determine ‘his rights and status in respect to said structure and particularly an adjudication that such structure is a non-conforming one and is entitled to remain and be from time to time restored and repaired and that he (plaintiff) does not violate the Zoning ordinance by having, maintaining and using said structure * * *.’ The Borough filed an answer thereto and also asked for a declaratory adjudication especially that the structure was not a non-conforming one. After certain motions addressed to the pleadings were made, the cause was referred to Circuit Court Judge Leyden, R.S. 2:27-185, N.J.S.A., who set the cause down for trial on May 14, 1945. Motion was made and argued to strike the complaint. On June 20, 1945 the Judge denied the motion to strike on the ground that the complaint did sufficiently set forth a threatened justiciable controversy between the parties. But the Judge did not deem it necessary, at the time, to pass on the question as to whether the declaratory judgment terminated the controversy or removed the uncertainty.

On May 26, 1945, plaintiff was notified by the then Building Inspector that the property was located in a Class ‘A’ Residence district, that it was occupied by two families in violation of the Zoning ordinance, and that the plaintiff desist from the violation of the ordinance. Plaintiff stood adamant. On June 29, 1945, plaintiff was served with a summons and complaint in the Criminal District Court of the County of Bergen charging him with the stated violation of the Zoning ordinance. On July 6, 1945, plaintiff obtained an order to show...