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Tremarco Corp. v. Garzio

Decided: May 23, 1960.

TREMARCO CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF-APPELLANT
v.
JOHN A. GARZIO, BUILDING INSPECTOR OF THE TOWNSHIP OF EWING IN THE COUNTY OF MERCER AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EWING IN THE COUNTY OF MERCER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.

Schettino

This appeal is from a unanimous reversal by the Appellate Division of a judgment of the Superior Court, Law Division ordering defendants to reissue a building permit to plaintiff for the erection of a public garage and a gasoline station.

On June 17, 1959 plaintiff filed a notice of appeal and simultaneously a notice of petition for certification. Defendants thereafter moved to dismiss the appeal alleging that

plaintiff had no right to appeal under R.R. 1:2-1. We find it unnecessary to decide the motion as we shall determine the cause as one coming before us on petition for certification which we have granted. R.R. 1:10-2.

In the trial court the parties stipulated the facts and agreed to submit the cause on cross motions for summary judgment. The facts are as follows: On June 25, 1957, all of the provisions of the applicable zoning ordinance having been complied with, the Ewing Township building inspector issued to the then owners of the premises in question a valid building permit for the construction of a public garage and gasoline filling station. At that time and up to September 3, 1958 the property was in an area that had been zoned a business district since the enactment of the zoning ordinance of 1950. Until June 5, 1958, public garages and gasoline filling stations were permitted in such business districts subject only to limitations as to proximity to certain buildings and places such as churches, schools and parks and as to the location of the buildings and gasoline pumps on the lot.

Concededly, the right to use the property for a service station increased the value of the property above what it would have been worth as a location for other business purposes and increased its value far above what it would have been worth for residential purposes. Except for the availability of the premises in question for the proposed service station plaintiff, whose sole function is to acquire sites for gasoline service stations for Gulf Oil Corporation, would have had no interest in it. Relying upon the existence of the permit and the provisions of the ordinance under which it had been granted, the plaintiff agreed to purchase the premises for $21,500. Prior to the passing of title the attention of all parties was directed to the fact that Section 7 of the building code provided that any permit issued thereunder would automatically be revoked if the proposed work was not actually begun within three months next after the date on which such permit had been issued. At the expiration

date of this permit an assurance was secured from the building inspector that the permit could be renewed. Relying upon such assurance, plaintiff acquired title on October 2, 1957. In accordance with the inspector's commitment, the permit was renewed on October 8, 1957 for an additional 90 days. Prior to the expiration of this 90-day period, plaintiff again applied for and received a reissuance or renewal of the building permit for an additional 90 days. The renewals were granted in the name of Gulf Oil Corporation, plaintiff's principal.

During the period of the renewals of the permit, plaintiff spent $145 for a survey, $647.16 for architect's fees, and entered into a contract in the amount of $31,412 with a contractor for the construction of the building and for the installation of the necessary equipment. During March of 1958 the contractor deposited storage tanks on the premises as the first step in the execution of the contract.

In the month of February 1958 defendant Garzio was appointed to the position of building inspector succeeding the inspector with whom plaintiff had dealt. In March of 1958 plaintiff applied to Garzio for a reissuance or renewal of the building permit, and such a permit was issued on March 27, 1958. Defendants concede the validity of this permit. Garzio knew of the prior permits and had been informed that plaintiff in reliance thereon had entered into the contract for the construction and installation work.

Shortly thereafter, defendant township committee received a petition from certain township residents protesting the issuance of the permit to plaintiff and although there had been no change in the character of the neighborhood since the enactment of the 1950 zoning ordinance, the township committee instructed Garzio to revoke plaintiff's building permit. On March 31, 1958 Garzio, by a personal visit, informed plaintiff's agents that the permit had been revoked and when they refused to acknowledge or accept the ...


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