Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
This action in lieu of prerogative writ sought to have declared void a building permit issued to defendants Allen Brothers, Inc. and Ronald Allen by the building inspector of the borough of Fair Haven. At the trial, at the conclusion of plaintiffs' case, the trial judge granted defendants' motion for an involuntary dismissal, on the grounds that plaintiffs' suit was not commenced within time under R.R. 4:88-15 and was barred by laches. Plaintiffs appeal.
The case has the following background. Ronald Allen is the owner of a tract of land situate in Fair Haven, bounded on the north by River Road, on the south by Forman Avenue,
on the west by Smith Street, and on the east by abutting property. Sometime prior to October 1958 a shopping center was erected on said premises. On October 20, 1958 defendant Ronald Allen applied for and was granted a permit to build an "Accessory Building" on a portion of said property. The application lists defendant Allen Brothers, Inc., as the proposed builder. At that time, under the then zoning ordinance of Fair Haven, the tract in question was zoned in part for residential use and in part for business use. The application, however, and the permit issued thereunder, only covered that portion of the tract within the business zone, the size of which was given as 305 feet on River Road, a rear line of 455 feet, and a depth of 292 feet. The proposed building was to be constructed on the westerly or Smith Street side of the lot and was to be a one-story structure 172 feet wide and 75 feet deep, housing five stores.
On May 25, 1959 the borough adopted a "Revised Building Zone Ordinance" which placed the entire block in which the tract in question is located in a business zone, and changed many of the provisions governing the location, erection, alteration and use of buildings within the borough. The revision also provided that it repealed the old building zone ordinance and that upon the effective date of the new ordinance "if any building is under the process of construction or alteration and is completed within six (6) months thereafter in a manner or for a purpose which does not conform with the requirements of this ordinance but is not prohibited by the ordinances of which this is a revision * * * such construction or alteration may be completed * * *."
On July 20, 1959 defendant Allen Brothers, Inc. began work under the October 1958 building permit. Two suits were then commenced, both of which sought to prevent the construction of the building. The first was filed on August 19, 1959, by Michael Nannini a resident and taxpayer in the borough who obtained an order to show cause why construction
should not be enjoined. The second was commenced on August 25, 1959, by William R. Olsen, Jr. and sixteen other plaintiffs, all of whom were property owners in the borough within the immediate vicinity of the tract in question, and some of whom lived directly across the street from defendants' proposed building. Thereafter the two suits were consolidated for trial and an ad interim restraint against further construction granted. Photographs marked in evidence at the trial indicate that at the time the suits were commenced the footings for the building were in and the rear wall, consisting of cement block with a brick facing, was in the process of construction.
At the trial plaintiffs' contentions were that the building permit was void because it had been issued in violation of the then existing building zone ordinance and that, in any event, the permit had been rendered void by the 1959 ordinance.
Originally plaintiffs rested their case on the pleadings, the pretrial order and exhibits, but when the court advised counsel that it was not in a position to decide the issues of laches and the effect of R.R. 4:88-15 without hearing from the plaintiffs, plaintiffs' case was reopened and Michael Nannini, the original plaintiff, was called as a witness. He testified that he learned of the permit shortly after it was issued, and upon inquiry, was told by the building inspector that the proposed building would be in the business zone. Nannini also testified that, being uncertain as to the location of the proposed building on the tract, he inquired about the plans and specifications and was told that they were available for examination at the building inspector's home. Nannini said that he did not attempt to look at the plans because on May 25, 1959 the new ordinance was adopted. When he saw the trenches for the building being dug in late July or early August of 1959 he consulted counsel, and on or about August 11 or 12 authorized the institution of suit. None of the plaintiffs in the Olsen suit testified, and all plaintiffs thereupon again rested.
In dismissing the consolidated actions at the close of plaintiffs' case, the trial judge ruled that plaintiffs were guilty of laches, but he did not specify what facts led him to that conclusion. He also held that plaintiffs were out of time under R.R. 4:88-15 since they had not commenced suit within forty-five days of the granting of the permit. The court was unable to find any circumstances justifying the enlargement of the forty-five day period as permitted by section (c) of the rule. The ruling made no reference to plaintiffs' alternative contention that the enactment of the revised ordinance on May 25, 1959 had voided the building permit. William F. ...