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Auciello v. Stauffer

Decided: December 22, 1959.

ANTHONY AND JOSEPHINE AUCIELLO, HUSBAND AND WIFE, ET AL., PLAINTIFFS-APPELLANTS,
v.
JOSEPH E. STAUFFER, AND THE CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, IN THE COUNTY OF HUDSON, DEFENDANTS-RESPONDENTS



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

Conford

Plaintiffs sue to enjoin the defendant Stauffer from violating the zoning ordinance of the City of Jersey City and for a mandatory injunction against the defendant municipality to compel Stauffer to comply with the ordinance. Plaintiffs number some 43 property owners and residents in the immediate vicinity of an auto wrecking and used car sales business which defendant conducts on Trenton and Elizabeth Streets and Waldo Avenue in Jersey City. The action was dismissed after trial on grounds of laches.

The property in question is in a second residential zone under the Jersey City zoning ordinance, which was adopted in 1931. In such a zone business or commercial operations of any kind are expressly prohibited. Defendant relies for the legality of his use as to part of the property, the Trenton Street lots, upon an alleged continuous nonconforming use begun by his father in the 1920's; and, as to all of it, upon use and building permits directed to be issued to him by the Jersey City Board of Adjustment in 1952 and 1955. The present action was instituted May 29, 1958.

The claim of prior nonconforming use was held not probatively established by the trial judge and we think he was clearly right as to this. We pass to consideration of the permits authorized by the board of adjustment.

In October 1951 defendant through a lawyer applied to the Jersey City Superintendent of Buildings for a permit to conduct an "auto wrecking lot" on vacant land on Trenton Street. This property had been purchased from the city by defendant in 1948. The application was promptly denied in writing as contrary to the zoning ordinance. Thereupon the lawyer wrote to the same official requesting reconsideration of the application and pleading considerations relative to the special needs of the applicant and the compatibility of the proposed business with the character of the vicinity, of the type frequently found in appeals to boards of adjustment for zoning variances under N.J.S.A. 40:55-39. A

fairly prompt response was received, but from the chairman of the board of adjustment rather than the superintendent of buildings, advising defendant's counsel that the board had no jurisdiction unless there was a public hearing. Information was given as to the regular hearing days of the board and concerning the time for filing such a request. On January 4, 1952, over two months later, the attorney wrote to the chairman of the board requesting a "reconsideration of the rejection of the application" and repeating the same kind of grounds as had been addressed to the building superintendent in October 1951. On April 4, 1952 the chairman of the board wrote the superintendent of buildings referring to this application, mentioning the proximity of commercial and light industrial uses and absence of objection from adjacent property owners, and stating that "it is the opinion of this Board that there is no need of a public hearing." The superintendent was directed to issue the requested permit forthwith, and this was done.

On February 11, 1955 defendant applied to the superintendent of buildings for a permit to erect a 24 by 50 foot garage on the Trenton Street property to be used as a "garage for tenants in adjoining property and storage space." This was denied February 23, 1955 as violative of the zoning ordinance, and the superintendent of buildings advised that if the applicant desired to appeal the decision, he could do so by submitting a letter so stating in duplicate to him. Thereupon he would forward the plan and application to the board of adjustment for its action. On February 25, 1955 the chairman of the board of adjustment wrote the building superintendent that in view of the nearby commercial uses on the street the type of garage building proposed would not "change the character of the street" and "therefore needs no public hearing." The permit was directed to be issued, and it was.

The third permit involved grew out of an application by defendant to the building superintendent September 16, 1955 to conduct a used car lot on the Waldo Avenue and Elizabeth

Street lots. As in the other instances, this was denied by that official as in violation of the zoning ordinance but granted under authority of the acting chairman of the board of adjustment with the observation that "a public hearing is not necessary."

Construction of the garage was a slow affair. It was not begun for some time after the application was granted. All of the labor was by the defendant, his father and brother. It was estimated by different witnesses to have been from one-fifth to one-half completed when this action was instituted. At time of trial it was still not quite completed. Defendant and his father testified construction of the building will have cost them almost $3,000 when completed. The only other installations by defendant on the property prior to the institution of this action were the construction of a scrap metal fence and some ash fill in depressed portions of the lots. The garage was never used for "tenants in adjoining property," as represented in the application, but for wrecking of cars and storage.

The permits issued to defendant were utterly void. There was no pretense of regularity in the actions of the officers of the board of adjustment in directing the issuance of permits for uses violative of the zoning ordinance, and declared to be such by the responsible building official. The board of adjustment is a statutory, quasi -judicial body whose powers and jurisdiction are specified and strictly delimited by N.J.S.A. 40:55-39. Dolan v. De Capua , 16 N.J. 599, 612 (1954). None of its authorized powers may be exercised except after public hearing, and upon at least ten (formerly five) days' personal notice to all owners of property within 200 feet of the property in question. N.J.S.A. 40:55-44. Here there was not only an inexcusable dispensation with notice and hearing, but even a by-passing of the governing body of the ...


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