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Crecca v. Nucera

Decided: October 28, 1958.

MICHAEL V. CRECCA AND MAFALDA CRECCA, HIS WIFE, FRANK J. DEVITA AND DOROTHY E. DEVITA, HIS WIFE, AND PHILIP J. RICCA, PLAINTIFFS-RESPONDENTS,
v.
JAMES NUCERA, BUILDING INSPECTOR OF THE TOWNSHIP OF LYNDHURST, COUNTY OF BERGEN, STATE OF NEW JERSEY, DEFENDANT-APPELLANT



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

Freund

The question for determination is at what point in time, whether before or after the issuance of a building permit, and under what circumstances does a property owner secure an indefeasibly vested right protecting him from a subsequent, assumedly valid ordinance change which will inhibit or prohibit a use of his property?

Plaintiffs by their complaint in lieu of prerogative writs seek to compel the defendant building inspector to issue a permit authorizing plaintiffs to construct a building to be used for a bowling alley. After summary hearing, on affidavits, the trial judge entered judgment that the defendant issue the applied-for permit. The defendant appeals.

The parties have agreed to a statement in lieu of a record from which, together with certain undisputed allegations, the essential facts emerge. For convenience we set them forth chronologically.

(1) February 19, 1958: Plaintiffs agreed by written contract to purchase from Safeway Stores, Inc., the land in question. The property is situated in a business zone under the local zoning ordinance.

(2) March 18: One of the plaintiffs, Michael J. Crecca, applied for a building permit for the construction of a building to be used for conducting the business of bowling. Defendant Nucera refused to issue it. As of March 18, 1958 the bowling alley was not forbidden in a business zone under the ordinance.

(3) March 19: Plaintiffs requested and obtained an order to show cause, returnable March 28, why a judgment should not be entered requiring the permit to be issued.

(4) March 21: Deed executed and delivered to plaintiffs.

(5) March 22: The Board of Commissioners convened in a special session on Saturday afternoon to discuss amending the zoning ordinance in certain respects, including the prohibition of the proposed use.

(6) March 24: The Board of Commissioners introduced the amendatory ordinance on first reading. Parenthetically, we note that the ordinance as amended is not challenged

here, and we accept its validity. Although it is under attack in a separate proceeding instituted by the plaintiffs, we must presume for present purposes that the action of the municipality was a good-faith legislative act deemed for the best interests of the municipality from a zoning standpoint. Town of Belleville v. Kiernan , 39 N.J. Super. 480, 485 (App. Div. 1956).

(7) March 25: Nucera formally notified plaintiffs why he was refusing to issue the permit. Some of the reasons were technical deficiencies under the building code. He also mentioned the pendency of an ...


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