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Frankel v. C. Burwell Inc.

Decided: January 31, 1967.

LEOPOLD FRANKEL AND ESTHER S. FRANKEL, PLAINTIFFS,
v.
C. BURWELL, INC., A NEW JERSEY CORPORATION, FRANCIS X. GRAVES, INDIVIDUALLY AND AS MAYOR OF THE CITY OF PATERSON, FRANK VENTRELLA, INDIVIDUALLY AND AS BUILDING INSPECTOR OF THE CITY OF PATERSON, AND PETER J. CAMMARANO AND CITY OF PATERSON, DEFENDANTS



Crane, A.j.s.c.

Crane

This action in lieu of prerogative writs seeks to contest the validity of the issuance of a building permit.

Plaintiffs are taxpayers of the City of Paterson and owners of property located at 455 East 42nd Street, Paterson. A contiguous piece of real property, known as 769-775 Twentieth Avenue, Paterson, is the subject matter of this suit. The property is in an area known as Zone R-1B, designated for the erection of one-family detached dwellings.

In 1962 a variance to permit the erection of an office building was recommended by the zoning board of adjustment and granted by the board of public works. Litigation upholding the validity of the variance was concluded by the

denial of an application for certification by the New Jersey Supreme Court in July 1964. Subsequently, an application for a rehearing before the board of adjustment was denied and an appeal was taken from the denial. Ultimately that litigation was terminated by the denial of an application for certification to the New Jersey Supreme Court in April 1966.

The present owner, C. Burwell, Inc., procured a building permit from defendant building inspector on December 5, 1966 for the erection of a two-story building in accordance with plans showing a building considerably different in appearance from that shown on the plans previously submitted upon the application for a variance. The plans, prepared by the same architect, provided for a building of generally the same dimensions, but the arrangement of entrances and exits, location of doors and windows, and the building materials specified were different. Being uncertain of the propriety of issuing a permit under such circumstances and mindful of the previous litigation, the building inspector consulted counsel to the board of adjustment as to whether the plans complied with the terms of the variance previously granted. After consultation he issued the permit.

The present action has been brought to contest the validity of the issuance of the building permit. At the hearing on the return day of the order to show cause the complaint was dismissed with respect to defendant Francis X. Graves, who is no longer mayor of the City of Paterson, and defendant Peter J. Cammarano, who is no longer the owner of the property.

The 1962 plans show a two-story office building, 30' in width and 85' in length with a full basement. The elevations show exterior walls of glass, aluminum and porcelain panels, with a canopy-covered entrance on one of the street sides. A parking area approximately 50' x 100' is also shown. The interior plans show central corridors approximately six feet wide, with offices on either side of the corridor on each floor.

The 1966 plans show a building of the same exterior dimensions but with a considerably different appearance. The front elevation, for example, shows no windows or doors in a wall of concrete block to be painted or covered with stucco. The side elevations show similar concrete block walls; however, windows are provided on both the first and second floors. The rear elevation shows the same concrete block construction walls, with an entrance surrounded by large plate glass panels located in the middle. Pedestrian entrance to the building is from the parking lot area rather than from the street, as in the 1962 plans. Other smaller narrow strip windows, running from the ground to the roof level, provide light for both the first and second floors. A distinctive feature of the rear elevation is the presence of two large overhead garage-type doors at either end of the building. These serve as entrances to the building from two depressed loading docks. It is significant that although the zoning ordinance requires loading docks in buildings of a much larger size, the building inspector could not recall a single instance in the City of Paterson where an office building was equipped with a loading dock. Parking space for ten cars is shown on the plot plan. The basement plan shows only a small boiler room, 10' x 14', the rest of the area being unexcavated. The first floor plan shows a foyer, a showroom, a storage area and a room called a demonstration office. The second floor plan shows an upper foyer, a reception area, a general office, two private offices, men's and ladies' rooms, and a large office area, 28' x 32'.

The significance of the showroom, storage and demonstration areas appears from the evidence relating to the nature of the business of defendant, C. Burwell, Inc. It is engaged in the business of selling tools, machinery, equipment, polishing compounds and other supplies used in the metals polishing and finishing industry. Presently, four salesmen, two girls and the president are employed by the organization. A ...


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