Tim v. City Of Long Branch

• Decision Date: 15 May 1947
• Docket Number: No. 8.,8.
• Citation: 53 A.2d 164,135 N.J.L. 549
• Parties: TIM v. CITY OF LONG BRANCH et al.
• Court: New Jersey Supreme Court

135 N.J.L. 549

53 A.2d 164

TIM

v.CITY OF LONG BRANCH et al.

No. 8.

Court of Errors and Appeals of New Jersey.

May 15, 1947.

Appeal from Supreme Court.

Certiorari proceeding by Louis B. Tim against City of Long Branch and others to review a building permit. From a judgment dismissing writ of certiorari, 134 N.J.L. 285, 47 A.2d 4, the prosecutor appeals.

Affirmed.

Judge DILL dissenting, and Judge McGEEHAN, dissenting in part.

Parsons, Labrecque, Canzona & Combs, of Red Bank (Theodore D. Parsons, of Red Bank, of counsel), for prosecutor-appellant.

Quinn, Doremus, McCue & Russell, of Red Bank (DeVoe Tomlinson, of Newark, and John J. Quinn, of Red Bank, of counsel), for Adele Trounstine.

Edgar H. Rossbach and Roger M. Yancey, both of Newark (John F. Sonnett and Marvin C. Taylor, both of Washington, D. C., of counsel), for National Housing Agency.

WACHENFELD, Justice.

This is a zoning case in which the issue is whether the United States Government had the right to convert a leased residence into an apartment in violation of the zoning ordinance of the City of Long Branch.

Adele Trounstine for a number of years owned a large dwelling house in the City of Long Branch on the east side of Westwood Avenue, running up to Bath Avenue. In December 1942 it was determined by the President of the United States that there existed in the City of Long Branch, New Jersey, an acute shortage of housing for persons engaged in national-defense activities which impeded national-defense efforts and that such housing would not be provided by private capital. Accordingly, the United States, acting through the National Housing Agency, in order to help ease the housing shortage in the area, started negotiations with Mrs. Trounstine for the lease of her property, with the right to alter the structure so as to provide a number of apartments.

Various plans for the alterations were prepared. On February 2, 1943 Mr. Trounstine submitted to the Building Inspector penciled sketches of the building's conversion to nine apartments prepared by an architect of the Home Owners Loan Corporation. These sketches failed to comply with the municipal ordinance requiring detailed plans and specifications be included with applications for building permits. The Building Inspector and the Board of Commissioners approved them at that time and the following day the former endorsed his written approval on penciled sketches providing for 15 apartments and told Mr. Trounstine to go ahead and have the plans prepared. Blueprints dated March 1, 1943 were prepared by the United States Government architects for 14 apartments and were sent to the Washington offices of the National Housing Agency and to the Tenement House Commission of the State of New Jersey for approval.

At that time and until March 16, 1943 the zoning ordinance of the City contained no prohibition against apartment houses in the residential zone herein concerned except that they should contain not less than five apartments. On the latter date an ordinance was enacted by the City which amended the zoning law by limiting to not less than three and not more than six the number of apartments in any apartment house converted from a private dwelling.

In May 1943 the Trounstines left the dwelling and on the following June 26 a lease was signed between them and the United States for a term of seven years, including provisions for alterations by the United States Government. A set of the final plans which had been sent for State and Federal approval was submitted to the Building Inspector on July 3, 1943. About two weeks later the building contractor under contract with the United States Government started the delivery of materials to the premises in preparation for the work and erected a sign thereon. On July 30 the approval of the State Tenement House Commission was received by the contractor and on the same day the Building Inspector of the City of Long Branch issued a building permit to ‘James Sutherland, Inc., Contractor, and War Housing-Adele Trounstine, Owner.’

The Permit was posted on the premises on August 19, 1943 and on the same date the appellant, through counsel, served the Trounstines and the building contractor with notice of appeal to the Zoning Board of Adjustment. A hearing was then held by the Board, which approved the issuance of the permit but reduced the number of apartments allowed to nine. The Supreme Court allowed certiorari and on its own motion included as a party ‘the National Housing Agency, an agency of the United States of America,’ which up to that point had not made an appearance. The writ was thereafter dismissed upon the ground ‘the owner, lessee and contractor acted in good faith upon the belief that the permit was valid and effective, and that prosecutor delayed action too long to be awarded any relief.’

We are affirming the court below but for the reasons herein set forth.

The acquisition of this property by the United States Government through its agency, the National Housing Agency, was taken pursuant to the Lanham Act, 42 U.S.C.A. § 1521 et seq. The policy and purpose of the act are, for the duration of the emergency as declared by the President of the United States, to further the national defense by providing ‘housing for persons engaged in national-defense activities, and their families * * * in those areas or localities in which the President shall find that an acute shortage of housing exists or impends which would impede national-defense activities and that such housing would not be provided by private capital when needed.’ 42 U.S.C.A. § 1521. See also 42 U.S.C.A. §§ 1524 and 1541.

The Federal Works Administrator, later the National Housing Agency, pursuant to Executive Order No. 9070, 50 U.S.C.A.Appendix, § 601 note, 7 F.R. 1529, in such case is authorized:

‘(a) To acquire * * * improved or unimproved lands or interests in lands by purchase, donation, exchange, lease * * *.

‘(b) By contract or otherwise (without regard to * * * any Federal, State, or municipal laws, ordinances, rules, or regulations relating to plans and specifications or forms of contract, the approval thereof or the submission of estimates therefor) * * * to make surveys and investigations, plan, design, construct, remodel, extend, repair, or demolish structures, buildings * * * on lands * * * acquired under the provisions of subsection (a) hereof * * *.’ 42 U.S.C.A. § 1521.

This lease and the...