The defendants hold a building permit issued by the building inspector of the plaintiff township on December 11, 1950, allowing the erection of a garden apartment development to contain 252 apartments. The project, as shown on the building plans submitted to the building inspector and upon which he acted, called for 24 separate structures to be erected in three sections and containing a total of 252 apartments. The plot plan submitted with the detailed plans to the building inspector showed the following allocation of apartments:
Between December 11, 1950, when the building permit was granted, and March 10, 1952, when the instant action was commenced by the township, the defendants had steadily proceeded with the erection of the buildings, so that before the suit was brought 11 of the 24 buildings were completed and were fully occupied. Those 11 buildings comprise Section A of the project and within them are contained the said 110 apartments, of which 36 are three-room apartments.
The project in respect of Sections B and C, consisting of the remaining 13 buildings, has progressed to the extent that the ground has been levelled, some of the foundations have been laid, and contracts have been awarded amounting to considerably over $1,000,000. The defendants have obtained a mortgage, already recorded, for $1,300,000, encumbering Sections B and C, and under the arrangements with the mortgagee that loan may be cancelled by the lender if in May of this year the buildings have not reached a certain stage of construction. The proofs are that in connection with those two sections the defendants have already by payments and by commitments incurred an outlay of over $1,000,000, in addition to which they have expended considerable moneys in putting in the principal utilities which service the project as a whole.
In the condition of things last stated, the municipality now seeks what is nothing more than a revocation of the building permit to the extent that that permit permits the erection of more than 182 apartments. The various forms of relief asked for in the complaint all resolve themselves into the single purpose of having the court adjudicate that the defendants may proceed to erect the 24 buildings but that those buildings must not in the aggregate contain more than 182 apartments. The attack is directed at the defendants' intention to include in the buildings the additional 70 apartments, being the difference between 182 and 252. That attack is based upon the claim that there exists between the municipality and the builders a written agreement dated October 23, 1950, attached to which is a map showing 24 buildings containing 252 apartments, whereas the map that should have been attached is one showing 182 apartments. A substitution of maps, either the result of fraud or mistake, is suggested. The defendants deny this and say that the municipality knew whenever it acted in connection with the project that it called for 252 apartments. This is, in short, the factual point of controversy. From the proofs before me the following facts stand established and found: [19 NJSuper Page 153] The building project is on a tract of large acreage, approximately 18 1/2 acres of which are in the plaintiff township and about an acre and a half in the adjoining Town of Millburn. On or about August 29, 1950, the sponsors of the project prepared a first or preliminary sketch showing the proposed group of garden apartment houses, consisting of 24 buildings and containing 182 apartments, none of which was shown as a three-room apartment; only four-, five- and six-room apartments were indicated. The 18 1/2 acres were then located in what under the then existing zoning ordinance was a Residence "A" zone, in which multiple apartment dwellings were not permitted. The defendants sought an amendment to the zoning ordinance so that these acres of land would be placed in Residence Zone "D," where such garden apartment structures were permitted. Several public hearings were held, at which appeared representatives from an association called the Colfax Civic Association, and these persons vigorously opposed any change which would permit garden apartments upon the tract in question. No question was raised as to the number of apartments, but the criticism was of garden apartments in general, the objectors preferring that the property remain zoned for one-family dwelling houses. On December 6, 1950, the members of the township committee, it being the governing body of the plaintiff municipality, unanimously amended the zoning ordinance in the respect sought and the tract in question was brought within the operation of the provisions relating to Residence Zone "D." At the township committee meeting held that day, and before the amendment was passed, the building inspector and the members of the township committee had before them the earlier map of August 29, 1950, which, however, had been previously revised in several particulars and which revised map showed the same number of buildings, the same coverage of buildings over land, but showed that those buildings would contain 252 apartments. On one of those maps the building inspector himself made notations in his own handwriting. No objection was expressed
by any one to the fact that a greater number of apartment units were shown on the revised map. That matter was not one of any concern, since there was no increase in number or size of buildings or in land coverage. The increase in the number of apartments was entirely the result of changing a number of the six-room apartments into three-room apartments. The revised map before the township committee on December 6, 1950, showed the number of three-room apartments as the builders ...