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Roselle v. Mayor and Council of Borough of Moonachie

Decided: December 6, 1957.

SALVATORE ROSELLE, PLAINTIFF-RESPONDENT,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF MOONACHIE, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN AND STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS



Before Judges GOLDMANN, FREUND and CONFORD.

Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

The plaintiff and the defendants have been in controversy since January 1956 over plaintiff's desire to operate a trailer camp or "park" on property he owns in the Borough of Moonachie. Plaintiff applied to defendants for a license for such an operation January 26, 1956. Defendants denied it, and, on February 23, 1956, adopted an amendment to the municipal zoning ordinance prohibiting all trailer parks or camps in the borough. Plaintiff was successful in having the Law Division of the Superior Court "set aside" the amendment by judgment dated December 14, 1956 and filed December 28, 1956. The judgment denied, however, a concomitant application for an order directing the borough officials to issue plaintiff a trailer camp license; this, apparently, for failure to comply with sanitary requirements. Plaintiff appealed.

Subsequently plaintiff made the necessary arrangements to comply with sanitary regulations of the state and municipal authorities and renewed his application for the license. It was again denied by resolution of the defendant governing body January 24, 1957, and, on January 28, 1957, defendants

filed a cross-appeal to the Appellate Division from the judgment dated December 14, 1956.

On February 5, 1957 plaintiff filed a new proceeding in lieu of prerogative writs in the Superior Court, Law Division, to compel the issuance of the license. An order to show cause why the relief sought by the complaint should not be granted was entered, and, after hearing, resulted in an order dated February 27, 1957, which in effect was a final judgment, directing defendants to issue the license pursuant to an ordinance of the borough regulating and licensing trailer parks. No appeal from this order has ever been taken by defendants. Instead, with the indorsed consent of the attorney for plaintiff, they obtained a stay order of the February 27, 1957 order on the same day which recited that the stay was to be effective "only until March 4, 1957, at which time the parties have scheduled argument before the Appellate Division * * *." On March 4, 1957 the Appellate Division granted a stay of the judgment which had been dated December 14, 1956. No further stay of the order of February 27, 1957 was ever obtained.

At a meeting of the governing body on February 28, 1957, the court order of February 27 was read and discussed and a motion to comply with it was defeated, four votes to two. At the same meeting a new amendment to the zoning ordinance was introduced and passed and adopted on first reading. This prohibited any dwellings, generally, or any "structure that has the character of a dwelling such as trailers, tents and shacks * * *" in any heavy industrial zone. Plaintiff's property is in such a zone. The amendment became effective May 2, 1957.

On April 12, 1957 the plaintiff filed a motion, returnable April 19, to hold the defendants in contempt for failure to obey the Law Division order of February 27, 1957. On May 1, 1957 the defendants countered with a motion to vacate the order of February 27 on the ground that to grant the permit would be contrary to the ordinance of the borough effective by the time of the return date of the motion. On May 7, 1957 the Appellate Division dismissed

defendants' cross-appeal from the December 14, 1956 order for lack of prosecution and vacated the stay, the plaintiff having previously withdrawn his appeal from that order.

After hearing, on affidavits, the Law Division, on May 27, 1957, ordered the defendant councilmen who had voted against compliance with the February 27 order "held in contempt of the order * * *," and further ordered them to appear before the court for "further proceedings in this contempt action" on June 7, 1957 unless the borough within ten days appealed from the order or complied with the terms of the February 27 order.

The motion of defendants to set aside the order of February 27, 1957 was denied by an order dated June 21, 1957 which recites that the action is for reasons "more particularly set forth in the opinion delivered by the Court on the 24th day of May, 1957." No written or other such opinion appears in the appendix. We are informed ...


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