Trenkamp v. Burlington Tp.

• Court: Superior Court of New Jersey
• Citation: 406 A.2d 218,170 N.J.Super. 251
• Parties: Alfred TRENKAMP and Doris Trenkamp, his wife, et al., Plaintiffs, v. TOWNSHIP OF BURLINGTON, Albert Heinold, Building Inspector, Township ofBurlington, Varro G. Buzzi and Rebecca Lou Buzzi, his wife, Defendants.
• Decision Date: 31 July 1979

Page 251

170 N.J.Super. 251

406 A.2d 218

Alfred TRENKAMP and Doris Trenkamp, his wife, et al., Plaintiffs, v. TOWNSHIP OF BURLINGTON, Albert Heinold, Building Inspector,

Township ofBurlington, Varro G. Buzzi and Rebecca

Lou Buzzi, his wife, Defendants.

Superior Court of New Jersey, Law Division.

July 31, 1979.

William L. Lundgren, III, Haddonfield, for plaintiffs (Farrell, Eynon & Lundgren, Haddonfield, attorneys).

Frederick W. Hardt, Burlington, for defendants Tp. of Burlington and Albert Heinold, Building Inspector (Sever, Hardt & Main, Burlington, attorneys).

Jeffrey N. Goldstein, Burlington, for defendants Varro G. Buzzi and Rebecca Lou Buzzi (Smith, Sand & Goldstein, Burlington, attorneys).

HAINES, J. S. C.

A building permit was issued to defendants Buzzi on July 2, 1977 for the construction of a building described in the application as "Butler farmstead building, 36 ft. X 50 ft." The application indicated that the structure was being erected to house a workshop and to store antique cars, parts, garden tools and mowers. Actual construction of the building did not begin until August 17, 1977. By August 23 sidewalls, side supports and roof beams were in place; by August 27 the roof and walls were covered, and by August 31 the exterior had been completed. A certificate of occupancy for the building was issued on September 3. Various photographs introduced into evidence portray the structure as a large metal building located at the rear of the Buzzi lot.

At the time the permit was issued the pertinent part of the township's zoning ordinance read as follows:

16:3-2(21) Garage, Private. A building or space accessory to a residence which provides for the storage of motor vehicles and in which no occupation, business or service for profit is carried on.

19:6-1(2) Permitted Accessory Building and Structures.

(a) Private garages and car ports.

(e) Storage buildings of 200 square feet or less in area.

Although N.J.S.A. 40:55D-72 permits "any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance" to take an appeal to the board of adjustment "within 65 days," plaintiffs did not avail themselves of this remedy. Instead, they filed their complaint in the Superior Court on November 2, 1977.

The complaint sets forth four theories of relief. First, plaintiffs assert an action in lieu of prerogative writs against the township building inspector, contending that he issued the permit in violation of the zoning ordinance. They demand a judgment compelling him to revoke the permit and enforce the ordinance. Second, plaintiffs assert an action in lieu of prerogative writs against the township seeking to have it compelled to secure the Buzzi's compliance with its zoning ordinance. Both of these actions implicate two of the four former great writs, namely the writs of Certiorari and Mandamus. As is explained in McKenna v. N. J. Highway Auth., 19 N.J. 270, 274-76, 116 A.2d 29 (1955), it is through the writ of Certiorari that matters are brought before the court for review, while it is through the issuance of a writ of Mandamus that relief is afforded to a litigant. Third, plaintiffs seek an injunction requiring the Buzzis to remove the structure because it violates the zoning ordinance. Fourth, plaintiffs demand an injunction requiring the Buzzis to remove the structure because it violates a deed restriction. The Buzzis,in turn, seek damages from the township and its building inspector in the event plaintiffs are successful.

The case is presently before the court on motions for summary judgment based upon limited testimony and a stipulated factual statement. The facts upon which this opinion relies are not in dispute.

A. The 45-Day Rule

R. 4:69-6(a) requires that an action in lieu of prerogative writs be commenced not later than "45 days after the accrual of the right to review, hearing or relief claimed." Consequently, the threshold issue with regard to plaintiff's prerogative writ claims is whether they were prosecuted within the allotted time.

There was (and is) no statute requiring a public announcement in connection with applications for or issuance of building permits. Compare N.J.S.A. 40:55D-12. Consequently, plaintiffs had no constructive notice that a permit had been issued to defendants and, as stipulated, did not have actual notice until 46 days later when building commenced. Neither the filing of building plans with the office of the building inspector nor the public record concerning the issuance of the building permit constituted notice to anyone who did not actually see these records. The law does not saddle the public with an obligation requiring the constant scrutiny of voluminous official documents of the kind involved here in order to protect individual rights. See Farmingdale Realty Co. v. Farmingdale, 55 N.J. 103, 112, 259 A.2d 708 (1969). The unfairness in requiring a plaintiff to bring suit within 45 days from the date a building permit is issued, when he was ignorant of any reason to do so and without notice of any fact which would require that a diligent inquiry be undertaken, is obvious.

Nevertheless, a prerogative writ was dismissed under similar circumstances in Zimmerman v. Cherivtch, 5 N.J.Super. 590, 68 A.2d 577 (Law Div.1949). In that case a prerogative writ was filed on June 30, 1949 to oust Cherivtch from the office of city commissioner, to which he had been elected on May 10, 1949. Plaintiff, one of the defeated candidates, alleged that Cherivtch had previously been convicted of a crime that rendered him ineligible for public office. In 1949 the time within which a prerogative writ could be filed was fixed by statute as 30 days.

Anticipating a problem with this time limitation, plaintiff alleged in his complaint that he did not know, and in the exercise of due diligence could not have known, that Cherivtch had been convicted of a crime that rendered him ineligible for office until June 17, 1949. On that date plaintiff read a newspaper report that defendant had admitted the conviction in a federal district court on the previous day. Further compounding plaintiff's problem was the fact that defendant had been convicted under the name of Samuel Cherivtch but was presently known as Simon M. Cherivtch. Consequently, plaintiff argued that his right to relief could not have accrued until he became aware of the conviction.

In response, the court stated that as a general rule "mere ignorance of the existence of a cause of action or of the facts which constitute a cause of action will not prevent the running of a statute of limitations or postpone the commencement of the period of limitation." 5 N.J.Super. at 593, 68 A.2d at 578-579. However, it did acknowledge that when a cause of action has been fraudulently concealed or when the cause of action itself is one in which the plaintiff was an innocent victim of a fraudulent scheme, the limitations period does not begin to run until the plaintiff becomes aware of the wrong or of facts that should place him on alert. The court held that the record failed to disclose facts supporting either exception to the general rule and dismissed the complaint. Curiously, in view of its prior statement of the general rule, the court prefaced its conclusion with the comment that plaintiff's allegations of ignorance were "not supported by any proofs in the record." 5 N.J.Super. at 594, 68 A.2d at 579.

Criticism of Zimmerman was not long in coming. In Marini v. Wanaque, 37 N.J.Super. 32, 116 A.2d 813 (App.Div.1955), an action in lieu of prerogative writs had been brought against the borough's building inspector. It alleged the wrongful issuance of a building permit and a certificate of occupancy. The trial judge dismissed the cause for several reasons, one of which was that the action had not been commenced within the 30-day limitation period required by the rule then in force regarding prerogative writ actions. Plaintiff claimed that he was unaware of the issuance of the permit until a date less than 30 days before he started suit. The Appellate Division disagreed, but discussed the problem of knowledge in reaching its conclusion.

Judge Conford started his analysis with the premise that an illegally issued building permit constituted a wrong for which a remedy could immediately be sought by commencing an action in lieu of prerogative writs. Therefore, unless plaintiff could avoid the general rule that a cause of action accrues when the facts that entitle one person to sue another come into existence, his complaint was barred by the 30-day limitation rule. To avoid this consequence, plaintiff argued that the limitations period should not commence to run until he knew or was chargeable with having known that the building permit was issued. After a discussion of Zimmerman this argument was rejected. The court said:

It is readily perceivable that strict application of the rule of the cited case could well work an unwarranted hardship in the classes of cases where the applicant for judicial relief was not the party directly involved in the municipal proceeding under attack and consequently neither knows of the illegal action taken, until after lapse of the limitation period, nor is so situated as to be on reasonable notice thereof. The facts of the present case do not require a determination as to whether the rule stated in the Zimmerman case should be held applicable in such a situation. It clearly appears here that plaintiff knew of the issuance of the building permit and what was being done under its authority well in excess of 30 days prior to his institution of the present action. R.R. 4:88-15(a) bars him under any reasonable concept of its proper interpretation. (37 N.J.Super. at 39, 116 A.2d at 816.)

Other cases have touched upon the problem. Olsen v. Fair Haven, 64 N.J.Super. 90, 165 A.2d 524 (App.Div.1960), involved an action in lieu of prerogative...