Decided: January 17, 1951.
CASIMIR KUROWSKI AND LUCILLE KUROWSKI, HIS WIFE, PLAINTIFFS-APPELLANTS,
BOARD OF ADJUSTMENT OF THE CITY OF BAYONNE, A CORPORATE BODY, AND MORRIS PADWE, DEFENDANTS-RESPONDENTS
On appeal from a judgment of the Superior Court. Law Division, where Judge William J. Brennan, Jr., filed the following opinion:
Freund, Proctor and Rogers.
[11 NJSuper Page 444]
The judgment is affirmed for the reasons expressed in the opinion of Judge Brennan in the court below.
"Plaintiffs sue to set aside a resolution adopted October 10, 1949, by the Bayonne Board of Adjustment granting defendant Padwe a variance from the Bayonne zoning ordinance to complete a storage building on premises immediately in the rear of plaintiff's home at 44 East 32d Street, Bayonne, and to reverse the board's determination made by the same resolution that the Bayonne Director of Public Works unlawfully revoked on January 24, 1949, the building permit issued to Padwe on October 27, 1948.
"The Padwes and the plaintiffs are neighbors at Nos. 42 and 44 East 32d Street. The Padwes had sold the house and lot No. 44 to the plaintiffs in 1944. The lot has a frontage of 37 feet on East 32d Street and a depth of 110 feet. The depth had been 180 feet when Padwe had title but he retained the 70 feet at the back abutting on the rear of lot 42. The present litigation grows out of Padwe's effort to erect a storage building on the 70 feet he retained. For almost three decades Padwe has operated and still operates a butter and egg distributing business from a building behind his residence at No. 42. When he sold No. 44 to the plaintiffs in 1944 he retained the 70-foot segment at the rear thereof for the express purpose of building thereon a storage building to connect with the structure at the rear of No. 42. Access to the building at the rear of No. 42 is by means of a driveway at the west side of Padwe's house. There is no means of access to the 70 feet at the rear of No. 44 (which is to the east of Padwe's house) except by said driveway and thence across the pavement at the back of No. 42.
"On February 19, 1945, Padwe was issued a permit by the Bayonne Building Department authorizing the construction of a storage building on the 70 feet at the rear of No. 44. At that time Bayonne had no zoning ordinance. The building code provided, however, that such permits, unless renewed, were valid only for three months. Padwe did not commence construction within three months after February 19, 1945, because of wartime difficulties in obtaining materials, and the permit was not renewed within or by the end of the three months.
"On March 20, 1945, the zoning ordinance became effective and included Nos. 42 and 44 East 32d Street in the 'A' residence zone and expressly provided that 'no building or premises * * * shall be used or any building or structure erected * * * for any commercial, manufacturing or industrial purpose.'
"The permit issued to Padwe in February, 1945, bore the number 14278. On October 27, 1948, over 2 1/2 years after the effective date of the zoning ordinance, the Building Department on Padwe's informal application issued what it designated as a 'Renewal of Permit 14278.' Thereupon Padwe promptly commenced building a storage building and by January 24, 1949, had spent $10,000 of an estimated total cost of $12,500 and had completed construction of the building except for the roof, floor, doors and some incidental work.
"On January 10, 1949, Padwe was notified by plaintiffs' attorney that the construction was unlawful, and on January 24, 1949, the Director of Public Works, to whose jurisdiction the Building Department is assigned, by letter to Padwe ordered that 'permit 14278 issued to you to build a storage building on property located at above premises (be) revoked, and that you appear before the Zoning Board and get their permission before proceeding any further.' This would appear to be intended as a suspension of the permit pending action by the zoning board.
"Padwe on January 28, 1949, executed an application for a variance from the zoning ordinance 'to complete building to be used for storage purposes' but did not file the application until five months later, on June 29, 1949. Meanwhile he brought an action in the Chancery Division seeking injunctive relief against the municipality. The plaintiffs in the present suit intervened in the Chancery action which, however, Padwe did not press but ultimately dismissed voluntarily.
"When Padwe filed the application for variance on June 29, 1949, he also filed the requisite sets of plans, copies of block diagram showing the properties within a radius of 200 feet, a list of the names and addresses of the owners of such properties and a statement of the points on which his application was based. The points included a statement of the facts with respect to the action of the Director of Public Works and an assertion that the permit issued October 27, 1948, was 'irrevocable after the applicant acted upon the faith of said Permits, by the expenditure of moneys in the prosecution of the work and the almost complete erection of the building.'
"The notice of public hearing required by statute to be given to the owners of property within a 200 feet radius was given by Padwe and an affidavit of service thereof was on file when the board on July 18, 1949, held a public hearing. The affidavit is missing from the board's file, but I accept as true the testimony of the clerk of the board that it was in fact filed. This testimony is in the form of an affidavit by the clerk which plaintiffs have stipulated may be considered as evidence the clerk would give if her testimony was formally taken.
"A transcript of the proceedings at that hearing was made and is in evidence. While it is not complete, as unfortunately seems so frequently to be the case in these zoning matters, nevertheless the salient features of the discussion can be gleaned from it.
"The building inspector testified as to the facts concerning the original and renewal permits and the purported revocation and produced the records of the Building Department in the matter. Padwe testified as to the construction, the amount he had spent, explained his difficulties in getting materials at the time the original permit was issued and testified that he had begun construction in November, 1948, in reliance on the 'renewal' issued October 27, and that his first knowledge of any objection to the project was received in the letter from plaintiffs' attorney of January 10, 1949. Both plaintiffs and four other property owners testified in opposition. All of them protested that the increased activity would create greater hazard to the children of the neighborhood. Mrs. Kurowski admitted noting the taking down of the fence at the rear of her property and said she talked with Padwe's contractor about it and assumed 'that it was going to be a garage, a private garage for his use' and said she first learned of the nature of the structure two or three days after the letter of January 10 sent to Padwe by her attorney.
"The challenged resolution of the board supports the variance and the reversal of the action of the Director of Public Works by finding that (1) the 'renewal' was duly and lawfully issued and that the revocation was unwarranted and unlawful because no hearing was given Padwe by the Building Department before the purported revocation; (2) that Padwe in good faith and at a cost of $10,000 had constructed the building 'openly and notoriously' and in reliance on the 'renewal,' that the building was almost completed and that all that is necessary to complete it is 'the roof, floors, doors and other minor details, that no objection to the construction was made by any of the objectors at the hearings prior to January 10, 1949,' by reason of all of which and on the authority of Freeman v. Hague , 106 N.J.L. 137 (E. & A. 1929), 'that the objectors were estopped from complaining about the construction of this building; that they knowingly permitted applicant to spend large sums of money and enter into contracts to do said work and complete the said building for more than two months before any complaint or objection to same was made; that the objectors had full knowledge that the said building was being built and that large sums of money were being spent by the applicant in doing so before any objection was made; that the Building Department of the City of Bayonne is estopped from revoking this permit; that the inspectors and other employees and agents of the said Building Department during period of construction inspected and supervised the construction of said building from November 2, 1948, to January 24, 1949; that the said Building Department had full knowledge that the applicant was spending large sums of money in constructing the said building from about November 2, 1948, to January 24, 1949;' (3) that the rear 70 feet of No. 44 'presents an exceptional situation and condition; that the strict application of the Zoning Ordinance would result in peculiar and exceptional practical difficulties to and also exceptional and undue hardship upon the owner of same; that the granting of said application would relieve such difficulties and such hardship; that there is no substantial detriment to the public good and that the purpose and intent of the zoning plan and Zoning Ordinance will not be substantially impaired by the granting of this application' for the reason that 'as found and determined: That the land upon which this building is constructed is about 70 feet by 37 feet in the rear of premises known as No. 44 East 32nd Street, * * *; that this land is about 110 feet from the building line of said lot; that the applicant uses part of the adjoining premises, No. 42 East 32nd Street * * * for storage purposes; that the driveway used for said building on No. 42 * * * would also be used for said building constructed in the rear of No. 44 * * *.'
"Plaintiffs urge that this resolution is invalid in its entirety because (a) the board's finding that plaintiffs are estopped to question Padwe's action is not supported by legal evidence because the permit upon which Padwe relies was invalid and issued without lawful authority; (b) the granting of the variance is improper because (1) the record does not support the board's determination and (2) in any event a variance could not be affected without the approval of the governing body of the city; (c) to the extent the application for a variance filed on June 29, 1949, is to be considered an appeal from the action of January 24th of the Director of Public Works the appeal was improperly heard because not taken within a reasonable time as required by R.S. 40:55-42 and because the application was not served upon the Director of Public Works.
"The board held that plaintiffs were estopped to protest Padwe's construction of the storage building because Padwe had changed his position substantially in reliance on the 'renewal' permit and plaintiffs, with knowledge of his activity, had made no protest until January 10, 1949, by which time the structure had been substantially completed. Plaintiffs' challenge to this holding relies on Dickinson v. Plainfield , 13 N.J. Misc. 260 (Sup. Ct. 1935); affirmed, 116 N.J.L. 336 (E. & A. 1936); Lynch v. Hillsdale , 136 N.J.L. 129 (Sup. Ct. 1947); affirmed, 137 N.J.L. 280 (E. & A. 1948); Home Fuel Oil Co. v. Glen Rock , 118 N.J.L. 340 (Sup. Ct. 1937), which, as is said at page 346 of the last cited case, held that 'the efficacy of a permit obtained from an authorized officer to do a forbidden act does not forestall consideration thereof by the lawfully designated tribunals even though the holder of the permit proceeds quickly to incur obligations and expenses by virtue of the permit.' The opinions in these cases distinguish Freeman v. Hague , 106 N.J.L. 137 (E. & A. 1929), cited in the board's resolution in support of its holding, on the ground that that decision was pronounced prior to the passage of the Zoning Act of 1928, P.L. 1928, c. 274.
"I harbor no doubt that the so-called 'renewal' permit was issued by an officer 'who assumed, but did not have, the requisite authority.' Dickinson v. Plainfield, supra. The original permit, issued before enactment of the zoning ordinance, was invalid three months after its date. The plain wording of the building code so ordained and such provisions are lawful. Sun Oil Company v. Bradley Beach , 136 N.J.L. 307 (Sup. Ct. 1947). Patently it could not be 'renewed' over 2 1/2 years later. In the face of the prohibitions of the zoning ordinance and statute, the municipal officer in October, 1948, had no authority to issue a permit to erect the structure. Oliva v. Garfield , 1 N.J. 184 (1948).
"I note that the Dickinson, Home Fuel Oil and Lynch opinions all emphasize the undue speed and implicit bad faith with which the landowners in those cases incurred obligations and expenses on the strength of the unauthorized permits. There is considerable doubt in my mind that the facts here evidence bad faith on the part of Padwe; and it is suggested in Tim v. Long Branch , 134 N.J.L. 285 (Sup. Ct. 1946); affirmed, 135 N.J.L. 549 (E. & A. 1947), that the doctrine of Freeman v. Hague may apply where the proofs are convincing of the good faith of the expenditures on the strength of the unauthorized permit.
"However, even if we assume that the elements of an estoppel are not present here, the Board's action should be affirmed because the variance allowed was fully supported by the facts. R.S. 40:55-39, sub-par. (c) empowers a board of adjustment to allow a variance as to a particular property where the strict application of the zoning ordinance would result in 'peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner' provided relief can be granted 'without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance' and provided further that the conditions of the property justifying the variance are the result of (1) exceptional narrowness, (2) shallowness, (3) shape, (4) exceptional topographic conditions, or (5) 'other extraordinary and exceptional situation or condition of such piece of property.' The land involved here obviously cannot be used for residential purposes. It has no street frontage on any side but is a completely isolated plot 37 by 70 feet hemmed in on all sides and accessible only across the rear of Padwe's house lot by means of his driveway. The storage building proposed by Padwe will be physically connected with the building in which he now carries on the non-conforming business he admittedly has a right to continue at the rear of his house. The proposed use is clearly the only use to which the lot under the circumstances may be satisfactorily adapted. Zoning ordinances are to be strictly applied to accomplish their desired objectives; but when 'especial hardship ofttimes ensues unnecessarily and unreasonably to individual landowners' by reason of special conditions within the statutory limits it is the 'function of the board of adjustment under the statute, through a variance, to relieve from such consequences, and thus to avert what would otherwise take the category of an unwarranted interference with the right of private property.' Brandon v. Montclair , 124 N.J.L. 135 (Sup. Ct. 1940); affirmed, 125 N.J.L. 367 (E. & A. 1940). I think that the situation of this isolated tract is such that, like the piece as to which a variance was approved in Roberts v. Board of Adjustment , 1 N.J. Super. 29 (App. Div. 1948), the restraint of the zoning ordinance 'thus put upon the property passes the bounds of reason and assumes the character of a merely arbitrary fiat.' I perceive no substantial detriment to the public good which will ensue nor any real impairment of the intent and purpose of the zoning ordinance. The whole situation would have been avoided but for the fortuitous circumstance that Padwe could not get materials to build the structure when he first got a permit to do so before the zoning ordinance became law.
"It is true that the situation as to this piece of property was created by Padwe's division of the larger lot when in 1944 he sold plaintiffs their house and the lot to the depth of 110 feet. However, at that time there was no zoning ordinance and Padwe's purpose in retaining the piece to use for the construction of the storage building was entirely legitimate, as evidenced by his obtaining the permit in February, 1945, before the enactment of the zoning ordinance. This is what distinguishes the facts from those in Peterson v. Montclair , 7 N.J. Super. 282 (App. Div. 1950), where the hardship relied upon was created by the property owner when, in violation of a subsisting zoning ordinance, he carved the lot involved from the original lot.
"Plaintiffs' argument that the situation was one in which, to be valid, the variance required the approval of the governing body under sub-paragraph (d) of R.S. 40:55-39 is without merit. Zoning boards are not agencies of local governing bodies. They are statutory creations performing quasi-judicial functions. Subparagraphs (c) and (d) delineate their powers either to grant or to recommend variances in permissible cases and the choice is that of the board, conditioned in either case on the existence of facts bringing the property within the requirements of sub-paragraph (c). Lynch v. Hillsdale, supra; Oliva v. Garfield, supra; Giordano v. Newark , 2 N.J. Super. 45 (App. Div. 1949); affirmed, 2 N.J. 585 (1949). The special jurisdiction of the governing bodies as to properties not within the definition of properties subject to sub-paragraph (c), and the limitations of jurisdiction of zoning boards in this regard to those fitting the definition of that sub-paragraph, have been eliminated by P.L. 1948, c. 305 and P.L. 1949, c. 242 which control this case. Compare Lynch v. Hillsdale, supra.
"Plaintiffs' last point requires no extended comment. They argue that the application for variance cannot be considered an appeal from the action of the Director of Public Works of January 24, 1949, and, if it is to be so considered, the board had no jurisdiction because the appeal was not taken in compliance with R.S. 40:55-42 within a reasonable time and no copy of the application was served on the Director. I observe that the principal points filed with the application challenged the action of the Director and that the building inspector testified at the board hearing and produced all the documents required on an appeal. Moreover, the form of the letter of January 24 indicates that the Director contemplated a suspension of the permit pending zoning board action, and not a revocation. However, the issue need not be determined since the variance was properly allowed and this necessarily carries with it the right of Padwe to any municipal permits necessary to complete the structure.
"The action of the board of adjustment in granting the variance is affirmed, and judgment may be entered accordingly."