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Giordano v. Mayor and Council of Borough of Dumont

Decided: September 3, 1948.

RENATO GIORDANO, PROSECUTOR-APPELLANT,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF DUMONT, AND RUDOLF HARTENSTEIN, BUILDING INSPECTOR OF THE BOROUGH OF DUMONT, AND HENRY BERSCH, BOROUGH CLERK OF THE BOROUGH OF DUMONT, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court, whose opinion is reported in 136 N.J.L. 294.

For the prosecutor-appellant, Abram A. Lebson (Stanley W. Bradley, of counsel).

For the defendants-respondents, Walter H. Jones.

Freund

The opinion of the court was delivered by

FREUND, J. The appellant appeals from a judgment of the Supreme Court dismissing a writ of certiorari to review a revocation of a building permit issued by the building inspector of the Borough of Dumont. The writ does not bring up the zoning ordinance, but does call for a review of the "proceedings rendered * * * by the Mayor and Council of the Borough of Dumont * * * and of the Borough

Clerk * * * and of the Building Inspector * * * with reference to the purported revocation of a building permit issued to Renato Giordano for the erection of a gasoline service station upon certain premises belonging to him located at Washington Avenue and Wood Place in said borough."

Renato Giordano in the early part of 1945 acquired title to a triangular plot of land upon which he planned to erect a gasoline service station. He applied for and on June 19th, 1945, obtained a building permit to erect a gasoline service station. The building code provided inter alia that "Any permits which may be issued by the Building Inspector * * * but under which no work is commenced within one year from the time of the issuance, shall expire at the end of that time * * *." For more than one year after the permit was issued, no work was done toward the erection or construction of the gasoline service station, so that under the local building code the building permit expired.

One of the streets bounding appellant's land is Washington Avenue, a main thoroughfare and a county road through Dumont. The proofs show that the neighborhood is substantially made up of one-family dwellings, several churches and two schools. At or about the location of the land in question there is a sharp curve in the road where, the proofs indicate, there had been several accidents. Undoubtedly in view of these factors, on July 8th, 1946, after the expiration of the foregoing permit, the Mayor and Council of Dumont amended the zoning ordinance so as to prohibit gasoline filling stations on both sides of Washington Avenue, including the appellant's premises.

Five months after the adoption of the zoning amendment, the appellant applied for and on December 9th, 1946, had issued to him by the then building inspector, John Colgin, a second building permit to erect a gasoline service station on the same premises. Colgin's term expired on December 31st, 1946, and a new building inspector, Rudolf Hartenstein, took office on January 1st, 1947. In April, 1947, Hartenstein became aware of the outstanding building permit issued on December 9th, 1946, and notified the Mayor and Council. Letters were addressed to the appellant by the

borough clerk and by the building inspector stating that the permit had been issued contrary to the provisions of the amended zoning ordinance and was revoked; that it had been improperly issued by Colgin who was without power to issue it and consequently it was void.

The court below held that the appellant "obtained an extension of his building permit" and appellant argues that the second permit was an extension or renewal of the first permit. The proofs do not disclose any written application for either building permit, although two permits are shown, No. 3253 issued on June 19th, 1945, and No. 3686 issued on December 9th, 1946. In the latter permit there is no mention of its being an extension or renewal of the first permit. The appellant concedes that no work had been commenced within one year from June 19th, 1945, the date of issuance of the first permit; it therefore expired by its own limitation and, having thus ...


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