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Kurowski v. Board of Adjustment

Decided: January 17, 1951.


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.

Per Curiam

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 ...

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