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KROEGER v. STAHL

January 7, 1957

Peter T. KROEGER t/a Mobile Radio Dispatch Service, Plaintiff,
v.
Kenneth F. STAHL, Building Inspector of Greenbrook Township, A Municipal Corporation of New Jersey, the Board of Adjustment of Greenbrook Township and the Township of Greenbrook, A Municipal Corporation of New Jersey, Defendants



The opinion of the court was delivered by: FORMAN

Plaintiff claims that the refusal prevented him from carrying out what amounts to an order of the Federal Communications Commission. Plaintiff further claims that the zoning ordinance is an arbitrary and unreasonable exercise of the police power of the municipality by the defendants, the Board of Adjustment of Greenbrook Township and the Township of Greenbrook, in that it deprives him of property without due process of law and violates the equal protection clause of the Fourteenth Amendment; that operation of the zoning ordinance amounts to an undue burden on interstate commerce; and that his claimed status as a 'public utility' renders him immune from the provisions of the zoning ordinance.

 He prays for a judgment, among other things, requiring the defendants to cease and desist from interfering with the construction of the structure designed to conduct the tests and the operation thereof.

 Defendants, in addition to challenging the plaintiff's assertions, interpose the objection that plaintiff is not properly before this court because of failure to have exhausted his administrative remedies.

 I.

 Proceeding at once to the jurisdictional question, it is well established that a suitor must exhaust his administrative remedies before seeking the extraordinary relief of a court of equity. Natural Gas Pipeline Co. of America v. Slattery, 1937, 302 U.S. 300, 58 S. Ct. 199, 82 L. Ed. 276; Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S. Ct. 459, 82 L.Ed 638. But what remedy is plaintiff seeking that an administrative board may grant? He is seeking, not a variance, but to have the ordinance declared unconstitutional, a remedy beyond the jurisdiction of a board of adjustment. Honigfeld v. Byrnes, 1954, 14 N.J. 600, 103 A.2d 598; Fischer v. Township of Bedminster, 1950, 5 N.J. 534, 542, 76 A.2d 673. To this extent, then, plaintiff is properly before the court.

 II.

 The initial question presented by the plaintiff is whether the temporary authorization issued by the Federal Communications Commission was an 'order' enforceable in a United States District Court, as contemplated in the provisions of the Federal Communications Act. *fn1"

 Among others, the paper contains the following conditions:

 'This special temporary authorization is granted upon the express condition that it may be terminated by the Commission at any time without advance notice or hearing if in its discretion the need for such action arises. Nothing contained herein shall be construed as a finding by the Commission that the authority granted herein is or will be in the public interest beyond the express terms hereof.

 'This special temporary authorization shall not vest in the grantee any right to operate the station nor any right in the use of the frequencies designated in the authorization beyond the term hereof, nor in any other manner than authorized herein. * * *'

 It did not direct plaintiff or any one else to do anything. It simply granted a request of plaintiff that he be permitted to conduct certain tests under limited conditions expressed therein. A copy of the paper was sent by registered mail to the Building Inspector on June 6, 1956, by the plaintiff, five days before he commenced this suit.

 Under the provisions of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001(d), an 'order' is defined as follows:

 "Order' means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing * * *.'

 In the instant case, without going into the question of whether defendants had been 'duly served' with the 'order', the permit issued to plaintiff was, as its title indicates, a 'special temporary authorization', and not a final disposition.

 In the light of this definition and the character of the temporary authorization as being in the nature of a grant or permission to plaintiff in fulfillment of his application to make tests, it would appear that its binding effect is only upon plaintiff and the radio stations named in it to the extent that the tests affecting them are permitted. It cannot be construed as an order encompassing the defendants in this case cognizable under Section 401(b) of the Federal Communications Act.

 III.

 The really crucial issue raised by the plaintiff is whether the zoning ordinance constitutes an undue burden on interstate commerce. Plaintiff contends that the instant case is analogous to or strongly parallels that of Transcontinental Gas Pipe Line Corp. v. Borough of Milltown, D.C.D.N.J.1950, 93 F.Supp. 287, where this court held that defendant Borough of Milltown's enforcement of its zoning ordinance, preventing plaintiff pipe line company from laying of a natural gas pipe line, constituted an undue burden on ...


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