Schermer v. Fremar Corp., C--1654

• Decision Date: 31 May 1955
• Docket Number: No. C--1654,C--1654
• Citation: 114 A.2d 757,36 N.J.Super. 46
• Parties: Charles S. SCHERMER, Stella Schermer, his wife, Alvin Daschell, Mary Daschell, his wife, Samuel Miller, Anne Miller, his wife, Anthony J. Busacca, Angeline Busacca, his wife, Joseph Casaceccio, May Casaceccio, his wife, Philip J. Duff, Ada A. Duff, his wife, Joseph L. Weintraub, Edith Weintraub, his wife, Daniel Wilner and Elyse Wilner, his wife, Plaintiffs, v. FREMAR CORP., a New Jersey corporation, and R. B. Williams, Jr., Building Inspector of Margate City, in the County of Atlantic and State of New Jersey, Defendants. . Chancery Division
• Court: New Jersey Superior Court

Page 46

36 N.J.Super. 46

114 A.2d 757

Charles S. SCHERMER, Stella Schermer, his wife, Alvin Daschell, Mary Daschell, his wife, Samuel Miller, Anne Miller, his wife, Anthony J. Busacca, Angeline Busacca, his wife, Joseph Casaceccio, May Casaceccio, his wife, Philip J Duff, Ada A. Duff, his wife, Joseph L. Weintraub, Edith Weintraub, his wife, Daniel Wilner and Elyse Wilner, his wife, Plaintiffs, v. FREMAR CORP., a New Jersey corporation, and R. B. Williams Jr., Building Inspector of Margate City, in the County of Atlantic and State of New Jersey, Defendants.

No. C--1654.

Superior Court of New Jersey Chancery Division.

May 31, 1955.

James M. Davis, Jr., Mount Holly, for plaintiffs (Powell & Davis, Mount Holly, attorneys).

Clarence Blitz, Atlantic City, for defendant Fremar Corp.

Enoch A. Higbee, Jr., Atlantic City, for defendant R. B. Williams, Jr.

HANEMAN, J.S.C.

This is a motion for summary judgment by the defendant, Fremar Corp.

The facts in connection herewith, as demonstrated by the affidavits and exhibits herein filed, are as follows: On February 7, 1955 R. B. Williams, Jr., Building Inspector of the City of Margate City, issued a building permit to John Low & Sons as builder and Fremar Corp. as owner, for the erection of a structure at Cedar Grove and Atlantic Avenues, Margate City, New Jersey, the plans for the same having been theretofore filed with the said building inspector. The plans as so filed show that the structure to be erected contains at least 47 separate units, in which units there is provision for at least 69 bedrooms. The building as proposed to be constructed is in a U-shape, being two stories in height. At the base of the U there is no structure on the first floor, an open entrance being afforded thereby to the center of the U. On the second floor, however, bridging this entrance, there are constructed several apartments or bedrooms. The heat for the entire building is supplied from one heater room. In 38 of the units provision is made for kitchenettes.

On January 31, 1955 the Fremar Corp. entered into a building contract with John Low and Sons for the construction of the building her involved. Shortly prior to entering into said contract the Boardwalk National Bank of Atlantic City agreed to advance the sum of $162,000 upon a construction mortgage for the erection of this building. On April 25, 1955, the date upon which summons was served upon these defendants, the buildings were approximately two-thirds completed and the Fremar Corp. had expended in excess of $100,000 in connection with the construction.

Plaintiffs argue that the issuance of said building permit was in violation of the building zone ordinance of the City of Margate City and that they as adjoining owners will sustain special damage as a result of the violation.

Defendants allege, and it is admitted, that the land here involved is located in a Dwelling C Zone. The ordinance, as far as here material, concerning dwellings in the Dwelling C Zone, provides as follows:

'Section 6. Dwelling C Zone Uses. Within any Dwelling C Zone no building shall be used in whole or in part for any industrial, manufacturing, trade or commercial purpose or for any other than the following specified purposes:

'1. Any use permitted and as regulated in Sections 5 and 5--A.'

Sections 5 and 5--A of said ordinance referred to in section 6, as far as here material, provide as follows:

'Section 5--A. Dwelling B Zone. Within any Dwelling B Zone no building shall be used in whole or in part for any industrial, manufacturing, trade or commercial purpose or for any other than the following specified purposes:

'2. Hotels, apartment houses or hotel-apartments having not less than 50 bedrooms for guests, or 50 so-called master bedrooms, * * *.'

Plaintiffs actually bottom their argument upon following contentions: (1) the defendants are constructing a building of two separate units and not one building; (2) the plans delineate only 42 units instead of 50 units as required by the ordinance; (3) the plans provide for a large sign and parking space, as is customarily maintained for a motel, and the building is therefore not a hotel, apartment house or hotel-apartment.

In order for the defendants to succeed upon a motion for summary judgment it must be shown palpably that there is no genuine issue of fact remaining. The affidavits and exhibits here offered show palpably that there is no such issue of fact remaining. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954).

In connection with plaintiff's first argument. I find that the defendants are constructing a building which is, to all intents and purposes, a single building and not two separate buildings. Conceding that on the ground floor there is a division between the two wings which extends the full length of the two uprights of the U, the two wings are connected on the second floor at the base of the U by the construction of rooms for sleeping purposes. It is further to be noted that the heat for all of the units is supplied by one heater room located in one of the uprights of the U. I find, therefore, that this is a single building.

Insofar as the plaintiffs' second argument is concerned, my computation shows that the plans delineate at least 47 separate units in which provision is made for at least 69 rooms designated either as 'bedrooms' or 'living bedrooms.' A bedroom has been defined as follows: 'A room furnished with a bed and intended primarily to be slept in.' Webster's New International Dictionary. The affidavits demonstrate that these 'bedrooms' and 'living bedrooms' are to be used...