Fritz, Lynch and Trautwein. The opinion of the court was delivered by Lynch, J.A.D. Fritz, J.A.D. (concurring).
Plaintiffs John W. Hill and Erona J. Hill (Hills), next door neighbors of defendants Jerry Ceran and Edith V. Ceran (Cerans), in the Borough of Eatontown, appeal from a judgment of the Law Division which affirmed the granting of a variance to the Cerans to permit certain additions to their residence. The additions would result in violation of the side yard requirement of seven feet as set forth in the applicable zoning ordinance. The proposed improvements would create a side yard of four feet.
On October 21, 1970, the Cerans applied for and received from the building inspector a permit to add a single car garage, laundry room, bath and foyer to their premises. The plans and specifications indicated that the side yard would be only four feet but the Cerans did not know of the seven foot requirement. There is no showing of fraud or lack of good faith on the part of the building inspector in issuing the permit. The court below held that the building inspector "made a mistake."
Construction began on November 4, 1970, and continued until March 10, 1971. At that time, the building inspector, alerted by the Hills, discovered that a mistake had been made in the issuance of the permit, and revoked it because it had been issued in violation of the ordinance. He told the Cerans that he had forgotten to let them know that they needed a variance when he issued the permit.
As the trial court found, substantial work had been completed between November and March. The foundation had been laid and inspected and approved by the building inspector. The rough framing of the rooms and garage area had been completed, the roof had been completely rough-sheathed with plyscore and partially shingled, the side of the garage and the rear of the addition had been rough-sheathed with plyscore. Of an overall estimated cost of $6,000, the Cerans had actually spent $3,500.
When the building inspector advised the Cerans of the revocation of the permit, they promptly applied for a variance and, after hearing, it was granted by the Board of Adjustment.
The trial court also found that if the Cerans were compelled to comply with the seven foot yard requirement the removal of the three feet of the garage would not only be at an additional cost of $1,500, but would also effectively deprive them of the use of the remaining structure (11 feet) for garage purposes. In recommending the variance, the Board of Adjustment found that many of the homes in the immediate area involved had side yards of less than seven feet. The trial court found that there were 40 homes with side yards less than seven feet on both sides and 38 homes where the side yards were less than seven feet on one side. Three of these incursions into the required side yard area were made pursuant to variances granted by the Board of Adjustment, two in 1967 and one in 1970.
Appellants argue that the building inspector "erroneously represented" that the minimum side yard requirement was four feet when in fact it was seven feet but, says appellant's
brief, "* * * in so making this good faith representation, no interpretation of the ordinance was necessary * * *" and therefore estoppel may not be applied, citing Jantausch v. Borough of Verona , 41 N.J. Super. 89 (Law Div. 1956), aff'd 24 N.J. 326 (1957), and Bonsall v. Township of Mendham , 116 N.J. Super. 337 (App. Div. 1971), certif. denied 59 N.J. 529 (1971).
What must be decided here, with all semantic obfuscations aside, is simply this -- when a building inspector, in good faith, but with mistaken judgment, issues a permit in violation of a zoning ordinance, may estoppel or laches operate in favor of one relying in good faith on the permit?
In our view, appellants misinterpret Jantausch. There, by way of dictum , the court alluded to three categories of cases wherein the issue of estoppel against a municipality may arise with respect to the issuance of permits. The court did not subscribe to any one of the categories, but merely described them: (1) where a permit is regularly issued in accordance with the ordinance, it may not be revoked after reliance by the permittee unless there be fraud; (2) where there is no semblance of compliance with or authorization in the ordinance, the deficiency is deemed jurisdictional and estoppel cannot be asserted (hereafter called the "void" class); and (3) the "intermediate situation" where the administrative official "* * * in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon * * *." Id. at 94. [Emphasis added] (hereafter called the "voidable" class). In the latter instance, said the court in Jantausch , the cases permit estoppel to operate.
Plaintiff argues that since the building inspector herein had no authority under the ordinance to issue the permit and therefore erroneously issued it to defendants, the action comes within category (2); i.e. , the issuance of the permit was totally void ab initio and estoppel may not spring therefrom even though there was reliance thereon by the permittee.
We do not agree. A reading of the cases cited by the court in Jantausch as being examples of the "void" class demonstrates what is meant by that characterization. Thus in V.F. Zahodiakin &c., Corp. v. Bd. of Adjustment, Summit , 8 N.J. 386 (1952), it was said of the "void" action under review that it was "not professed to be an exercise of the statutory power" (Id. at 393); there was "no pretense of adherence to the statutory principle" (Id. at 394); it was "not within the province of the local authority" (Id. at 395); and it was "not a mere irregular exercise of the quasi-judicial function residing in the local authority." (Id.). In Zahodiakin , Justice Heher cited, among other cases, Bauer v. City of Newark , 7 N.J. 426 (1951), as illustrative of what he meant by an act so ultra vires as to be coram non judice and "utterly void," and thus beyond the power of resuscitation by reason of estoppel. In Bauer , Justice Heher described the distinction between an act which a municipality is "utterly without capacity to make under any and all circumstances" and an act "merely voidable for want of authority or for an irregularity in the exercise of the contractual power." Id. at 434.
In Summer Cottagers' Ass'n of Cape May v. City of Cape May , 19 N.J. 493 (1955), the Supreme Court, again ...