Springfield Tp. v. Bensley, C--1162

Decision Date29 March 1952
Docket NumberNo. C--1162,C--1162
Citation19 N.J.Super. 147,88 A.2d 271
PartiesSPRINGFIELD TP. v. BENSLEY et al. . Chancery Division
CourtNew Jersey Superior Court

Max Sherman, Newark, for plaintiff (Lester Sandles, Newark, of counsel).

Herbert M. Ellend, Newark, for defendants Helen F. Bensley and Carl H. Flemer.

Samuel Daniels, Newark, for defendants Nicholas Angleton, Short Hills Village, Inc., Short Hills Village Sections 2 & 3, Inc., and Liberty Const. Co.

Morris M. Schnitzer, Newark, of counsel with all the defendants.


The defendants hold a building permit issued by the building inspector of the plaintiff township on December 11, 1950, allowing the erection of a garden apartment development to contain 252 apartments. The project, as shown on the building plans submitted to the building inspector and upon which he acted, called for 24 separate structures to be erected in three sections and containing a total of 252 apartments. The plot plan submitted with the detailed plans to the building inspector showed the following allocation of apartments:

                Section A           110 apartments
                Section B            80 apartments
                Section C            62 apartments
                    Total.........  252 apartments

Between December 11, 1950, when the building permit was granted, and March 10, 1952, when the instant action was commenced by the township, the defendants had steadily proceeded with the erection of the buildings, so that before the suit was brought 11 of the 24 buildings were completed and were fully occupied. Those 11 buildings comprise Section A of the project and within them are contained the said 110 apartments, of which 36 are three-room apartments. The project in respect of Sections B and C, consisting of the remaining 13 buildings, has progressed to the extent that the ground has been levelled, some of the foundations have been laid, and contracts have been awarded amounting to considerably over $1,000,000. The defendants have obtained a mortgage, already recorded, for $1,300,000, encumbering Sections B and C, and under the arrangements with the mortgagee that loan may be cancelled by the lender if in May of this year the buildings have not reached a certain stage of construction. The proofs are that in connection with those two sections the defendants have already by payments and by commitments incurred an outlay of over $1,000,000, in addition to which they have expended considerable moneys in putting in the principal utilities which service the project as a whole.

In the condition of things last stated, the municipality now seeks what is nothing more than a revocation of the building permit to the extent that that permit permits the erection of more than 182 apartments. The various forms of relief asked for in the complaint all resolve themselves into the single purpose of having the court adjudicate that the defendants may proceed to erect the 24 buildings but that those buildings must not in the aggregate contain more than 182 apartments. The attack is directed at the defendants' intention to include in the buildings the additional 70 apartments, being the difference between 182 and 252. That attack is based upon the claim that there exists between the municipality and the builders a written agreement dated October 23, 1950, attached to which is a map showing 24 buildings containing 252 apartments, whereas the map that should have been attached is one showing 182 apartments. A substitution of maps, either the result of fraud or mistake, is suggested. The defendants deny this and say that the municipality knew whenever it acted in connection with the project that it called for 252 apartments. This is, in short, the factual point of controversy. From the proofs before me the following facts stand established and found:

The building project is on a tract of large acreage, approximately 18 1/2 acres of which are in the plaintiff township and about an acre and a half in the adjoining Town of Millburn. On or about August 29, 1950, the sponsors of the project prepared a first or preliminary sketch showing the proposed group of garden apartment houses, consisting of 24 buildings and containing 182 apartments, none of which was shown as a three-room apartment; only four-, five- and six-room apartments were indicated. The 18 1/2 acres were then located in what under the then existing zoning ordinance was a Residence 'A' zone, in which multiple apartment dwellings were not permitted. The defendants sought an amendment to the zoning ordinance so that these acres of land would be placed in Residence Zone 'D', where such garden apartment structures were permitted. Several public hearings were held, at which appeared representatives from an association called the Colfax Civic Association, and these persons vigorously opposed any change which would permit garden apartments upon the tract in question. No question was raised as to the number of apartments, but the criticism was of garden apartments in general, the objectors preferring that the property remain zoned for one-family dwelling houses. On December 6, 1950, the members of the township committee, it being the governing body of the plaintiff municipality, unanimously amended the zoning ordinance in the respect sought and the tract in question was brought within the operation of the provisions relating to Residence Zone 'D'. At the township committee meeting held that day, and before the amendment was passed, the building inspector and the members of the township committee had before them the earlier map of August 29, 1950, which, however, had been previously revised in several particulars and which revised map showed the same number of buildings, the same coverage of buildings over land, but showed that those buildings would contain 252 apartments. On one of those maps the building inspector himself made notations in his own handwriting. No objection was expressed by any one to the fact that a greater number of apartment units were shown on the revised map. That matter was not one of any concern, since there was no increase in number or size of buildings or in land coverage. The increase in the number of apartments was entirely the result of changing a number of the six-room apartments into three-room apartments. The revised map before the township committee on December 6, 1950, showed the number of three-room apartments as the builders now wish to include in the buildings and as they have already been included in the 11 buildings completed and now occupied.

When a few days later the architect, Chirgotis, presented to the building inspector the detailed building plans, he submitted therewith the building plot plan which was the same as had been before the township committee on December 6, 1950, when the ordinance was amended. The inspector, upon examining the plan and again seeing that it called for 252 apartments, issued the building permit, and on it he wrote in his own hand 252 as the number of apartments allowed.

The agreement above referred to, dated October 23, 1950, was prepared by Mr. Ellend (the attorney for the owners of the land), who conferred with and took suggestions from Mr. Darby, the town's attorney. That agreement recites, amongst other things, that the planning board has approved of the project and that the Township of Springfield has testatively approved of the location of the streets and structures to be laid out and has agreed to accept the dedication of the streets when laid out in accordance with the map submitted (the original August 29, 1950, map). The agreement provides that if the governing body shall amend its zoning ordinance so as to permit the erection of the proposed garden apartments, then the owners will apply for permission so to build and will convey or dedicate the streets shown on the map, and that on the other hand the township would authorize the issuance of building permits 'subject to the requirements of the Building Code for the erection of buildings as laid out, after the submission of plans and specifications therefor,' and would approve the location of streets and utilities. That agreement was signed by the owners on the date it bears, but was not executed by the township until long after the zoning ordinance was amended and the permit was issued. On January 10, 1951, Mrs. Robert F. Darby, the attorney for the township, wrote to Mr. Ellend calling for the map to be attached to the agreement, and in his letter said: 'I do not know just how we will overcome the problem of the dating of the map--perhaps by having the map date repeated as August 29, 1950, as revised December, 1950. I think if it is then satisfactorily identified by the initials, it could be attached to the agreement, and would be properly referred to by the language of the agreement.' In response to that letter there was delivered to Mr. Darby the map dated August 29, 1950, with the notation 'revised December, 1950.' The revision concerns a few items not here involved but also shows the number of apartments as 252, and the map so furnished to Mr. Darby was precisely like the map before the township committee on December 6, 1950, when it amended the zoning ordinance, and before the building inspector on December 11, 1950, when he issued the building permit. Mr. Darby attached that map to the agreement, transmitted the same on January 29, 1951, to the township clerk with a letter referring to the annexed map, and suggested that the document be turned over to Mr. Walt Baldwin for his examination. Mr. Baldwin is that member of the township committee who is also a member of the town planning board. The letter further suggests that the agreement, if approved and executed, should be kept by the township or it could be recorded. The agreement was presented to the township committee meeting held on March 28, 1951, and its execution was authorized. It was then signed by the chairman of the township committee and by...

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13 cases
  • Maryland Classified Emp. Ass'n, Inc. v. Anderson
    • United States
    • Maryland Court of Appeals
    • December 7, 1977
    ...of its own ordinance. If it becomes discontent therewith, the remedy lies in repeal or amendment . . . ." Springfield Tp. v. Bensley, 19 N.J.Super. 147, 164, 88 A.2d 271, 279 (1952). On the other hand, a few courts have permitted an official to interpose the unconstitutionality of a statute......
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