Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
On September 18, 1961 this court granted leave to plaintiffs to appeal nunc pro tunc a judgment of the Law Division which only partially disposed of this action in lieu of prerogative writs. R.R. 1:27B(e); 2:2-3. Plaintiffs had at first appealed without leave.
The judgment was entered July 13, 1961, on cross-motions for summary judgment. It dismissed plaintiffs' complaint, which had attacked the validity of a building permit issued by the defendant building inspector May 9, 1960 for the erection of a five-story apartment house in Orange. It also ran in favor of the defendant property owners on the first count of their counterclaim which sought a declaration that the building permit was "valid, binding and conforming to the proper zoning ordinance of the City of Orange." Undisposed of by the court were the second and third counts of the counterclaim, seeking, respectively, an adjudication that a city ordinance of March 7, 1961 was "invalid and of no legal effect" and actual and punitive damages against plaintiffs for malicious abuse of process in the institution of the action.
As the case involved a million-dollar apartment house project in the early stages of continuing construction (there has been no application for a stay, below or here), the court ordered the appeal to be set down for argument October 9, 1961 on an accelerated basis, and the matter has been fully briefed and argued.
Plaintiffs are property owners in Orange, the Sauttos residing on one side of the proposed apartment house site and the Christianos on the other, the premises in each case being adjacent to that of defendants. Plaintiffs assert that the building permit was void when granted because the building plans failed to provide for side yards the full length of each side line of the apartment house plot, as assertedly required by section 4(d) of the 1922 zoning ordinance of the City of Orange. They claim, in the alternative, that if the
plans were not in conflict with the 1922 ordinance, the project is nevertheless illegal by virtue of the amendment of the ordinance March 7, 1961, effective March 9, 1961, which unequivocally requires a ten-foot minimum side yard and exempts therefrom only building permits previously issued on plans conforming to the previous zoning regulations where "construction work" has "started at the effective date" of the amendment, in which event work may proceed provided it is completed within one year of said date. The contention is that no construction work was started by defendants before the 1961 ordinance became effective, certain test borings made in September 1960 not constituting "construction work" within the intent of the proviso.
The defendant owners of the project contend (1) that the plaintiffs are barred by the 45-day limitation period under R.R. 4:88-15(a), not having instituted this action until April 28, 1961; (2) that the building plans upon the basis of which the building permit was issued conformed with the requirements of the 1922 ordinance as to side yards; (3) that the permit was saved under the terms of the 1961 zoning amendment saving clause since the test borings constituted the starting of construction work; (4) that in any case the 1961 amendment could not affect defendants' vested rights under the building permit because they had made substantial expenditures in reliance thereon; and (5) that the plaintiffs are in laches.
The trial court filed a letter opinion in this matter. It made no finding as to the conformity of the proposed building to the 1922 ordinance beyond noting that there was compliance "in the opinion of the building inspector" and that "his interpretation attaches an assumption of correctness." The express basis of the decision of the court was (1) plaintiffs' laches , defendants having "spent in excess of $160,000" on the project at the time of the institution of suit and plaintiffs having known of the building permit -- Mr. Christiano (who is a city commissioner of Orange) since May 10, 1960, and the Sauttos at least since September 1960; and (2) limitations,
pursuant to R.R. 4:88-15(a). The court further stated:
"I have given no consideration to the 1961 Zoning Ordinance of the City of Orange and its applicability to the present building permit because I am of the opinion that the 1922 Zoning Ordinance applies directly to the building permit issued."
We dispose initially of the contention that the 1922 ordinance prohibited this building, which concededly has no side yards for the first 40 feet from the main front wall, but has "courts" extending to the side lines beyond that depth of the building. The position of the plaintiffs is that the 1922 ordinance requires side yards for the entire depth of the building and side lines. The disputed provision, applicable to a Residence "C" District, controlling this property, reads as follows:
"4(d) A side yard is required along the full length of each side lot line, except as hereinafter specified. Each such side yard and each required court shall have a clear unobstructed width at any story level equal to one-third of the height of its side wall and shall otherwise conform to the requirements of Section 2 (d) for Residence 'A' Districts and of those in Section 3 (d) for Residence 'B' Districts, except that a rear appendage may extend to the rear line and may not be over six stories in height, provided that over 40 feet back from the main front wall of the building there shall be a required court along each side lot line. The depth of a court may exceed four times its required width, provided that for each additional ten feet of depth six inches per story above the ground story shall be added to the width of such court at any story level throughout its depth. Groups of houses or apartments erected on one lot shall be provided with a side yard for each six families maximum houses thereon."
We do not set forth sections 2(d) and 3(d), referred to in the foregoing quoted excerpt, or definitions of the various terms, set out in section 1(e), because the extended space they would take to reproduce is not worth their contribution toward the rationale of our conclusions. Nor will we
indulge in the lengthy exegesis of section 4(d) which response to the contesting interpretations of the parties might render appropriate were resolution of the issue of construction absolutely necessary. Suffice it to say that the ordinance is, to say the least, ambiguous. When the attention of the city counsel was first called to the matter by Mr. Christiano, he wrote the predecessor of defendants and the building inspector that there was error in granting the permit without "side yards." At the argument before the trial court he said: "The way that ordinance is written is not clear." In his brief on this appeal, wherein he generally sides with defendants, he states that the section is "ambiguous" and that, ...