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Schultze v. Wilson

Decided: March 2, 1959.


Schettino, Hall and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.


This is a proceeding in lieu of prerogative writ seeking to invalidate a building permit issued to defendant Wilson in 1954 by the borough's then building inspector, and to compel its surrender. Plaintiff also sought to restrain Wilson from proceeding with the continuance of erection of a certain structure on his premises and to compel the municipality and its present building inspector, defendant Brown, to take the necessary steps to cancel the permit.

The trial court held that plaintiff was barred from attacking the issuance of the permit by the provisions of R.R. 4:88-15(a) and by the doctrine of laches. However, it found that plaintiff had a "special interest" to entitle him to the injunctive relief requested, and restrained defendant Wilson from proceeding with the building until Wilson complied with the requirement of filing plans and specifications as set forth by the defendant municipality's building code in existence at the time the permit was issued. Relief was denied against the borough and the building inspector. From a judgment entered upon these determinations, an appeal is taken by plaintiff and cross-appeal by defendant Wilson. We are advised by the attorneys for defendants Brown and Keyport that they have no interest in the outcome and will abide by the decision of this court, so they have not participated in the appeal.

Wilson is the owner of three contiguous lots situated on the southerly side of West Front Street, Keyport. In 1954 he conducted the "Keyport Fishery" in a building on the westerly lot and the other lots were vacant. Plaintiff is the owner of a business property to the east of Wilson's lots and also conducts a restaurant business diagonally across the street from Wilson's lots. The lands owned by plaintiff

and Wilson on the southerly side of West Front Street lie between that street and Luppatatong Creek and are very shallow in depth. Wilson's premises at 150 West Front Street, for which the permit was issued, has a depth at the westerly end of 25.80 feet and at the easterly end of 27.8 feet. The photographic exhibits disclose a rather sharp drop from the land elevation to that of the creek.

On or about March 5, 1954 Wilson requested a building permit for the erection of a restaurant building on his premises at 150 West Front Street. On that date, defendant municipality had no zoning ordinance in force but had in effect a building code the pertinent parts of which are as follows:

"An Ordinance Regulating the Construction, Alteration and Repairing of Buildings in the Borough of Keyport (As Amended).

Be It Ordained by the Council of the Borough of Keyport:

1. This ordinance shall be known as "The Building Code,' of the Borough of Keyport and may be cited, designated or referred to by such name.

6. Plans and specifications for plumbing work shall be filed separately with the Board of Health in accordance with An Ordinance of the Board of Health of the Borough of Keyport Governing Plumbing, Drainage and Ventilation. Passed and approved December 14th, 1911.

7. No oversight or dereliction of duty on the part of the Building Inspector shall legalize the erection, construction of any building not in conformity with the building ordinance.

8. Every applicant for a permit for the erection, alteration or raising of any building or structure, or part thereof, shall file with the Building Inspector of the Borough of Keyport plans and specifications for that purpose; and shall also file with said Building Inspector a written statement of the location and estimated cost; also the intended use of the proposed building or structure. If it shall appear to the said Building Inspector that the ordinances of the said Borough are complied with, he shall grant such permit."

It is conceded that Wilson did not file any plans or specifications whatsoever and none was required by the building inspector. However, Wilson did make known, and it is so stated in the municipality's listing of "Building Permits March 1954," that he intended to build a store at the

approximate cost of $9,600. Neither this list nor the permit itself otherwise described the proposed building or its location on the land. There was also uncontradicted testimony at the trial that as of March 1954 the building inspector did not have any forms for applications for building permits and that the filing of plans and specifications was never demanded by the building inspector as a condition precedent to the issuance of permits. These facts support the inference that the requirement of filing plans and specifications was virtually never enforced in Keyport.

The permit was issued to Wilson on March 5, 1954. Within a few days, he had constructed footings and one course of foundation of cinder blocks on the property, extending across the front of the lot practically adjoining the sidewalk and down the easterly and westerly sides to the top of the embankment. Blocks were not laid along the embankment in the rear. The cost of this work was $455.65. Plaintiff concedes his knowledge of this construction while it was in progress.

On November 9, 1954 Wilson undertook, pursuant to R.S. 12:3-10, to secure the riparian rights in that portion of Luppatatong Creek to the rear of the premises upon which he laid the blocks. Obviously, the shallowness of the lot required that the rear portion of the building he planned to erect would have to extend over the riparian lands and he had been advised he could not build thereon without obtaining a riparian grant. Plaintiff vigorously contested Wilson's attempt to secure this grant but on January 30, 1956 Wilson secured a deed from the State granting him the rights. This grant was unsuccessfully attacked in the courts by plaintiff. Schultz[e] v. Wilson , 44 N.J. Super. 591 (App. Div. 1957), certification denied 24 N.J. 546 (1957).

Plaintiff filed the complaint herein and obtained an order to show cause on March 23, 1956. Subsequently, in August 1956, an amended complaint was filed. It was alleged that the building permit was issued in violation of the provisions of the building code of the defendant municipality "in that no plans, and specifications were filed, nor was any written

statement of the location, estimated cost or intended use filed, nor plans and specifications of the plumbing work filed with the Board of Health, * * *"; that at the time of the issuance of the permit there was then pending before the mayor and council of the defendant municipality "an ordinance providing for the adoption of an ad interim zoning, which said ad interim zoning ordinance was passed on March 22, 1954"; that there is a comprehensive zoning ordinance now in effect in the defendant-municipality; that defendant now proposes, acting upon the building permit granted to him, to erect "upon the premises owned by him at the time of the issuance of the said building permit and upon the premises thereafter acquired by him as aforesaid [ i.e. , the riparian grant] a building structure to be used for the purposes of a ...

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