Allcorn, Morgan and Horn.
The corporate plaintiff, an association of homeowners, and several of its individual members owning property in proximity to defendant's proposed high-rise apartment building, were successful in obtaining from the trial judge, following a nonjury trial, a judgment enjoining construction of the apartment house on the ground that its design was in violation of the requirements of the local zoning ordinance adopted after an alleged building permit had been issued and after monies had been allegedly expended in reliance thereon. The judge in an oral opinion held that the proposed building did not conform to the ordinance, that no building permit had, in fact, been issued and that, in any event, defendant had not made expenditures and investments in reliance upon a valid building permit authorizing construction of the nonconforming building. Defendant appeals.
The operative facts are relatively free from dispute although the parties differ as to the conclusions to be drawn therefrom. On May 23, 1973 defendant builder entered into a contract to purchase property at 94-98 Boulevard, Passaic, New Jersey, as a site for an apartment building for $80,000.
Application to the local planning board for site plan approval, made on June 6, 1973, resulted in advice that the purchased lot did not fulfill the 30,000 square feet minimum lot size requirement, and "in order to avoid trouble" and "on the advice of the people of the Planning Commission and the powers in the City Hall," defendant on June 14, 1973 contracted to purchase adjacent property at 88 Boulevard for $50,000. According to defendant's brief, its application was tabled over the summer in order to carry the matter until a new board was constituted in September 1973.
In the meantime, on July 5, 1973, title to the property at 94-98 Boulevard was closed and on September 25, 1973 site plan approval for the proposed 12-story, 101-unit building was granted subject to proof that defendant owned the building at 88 Boulevard.
Defendant, however, encountered a snag when the contract seller of 88 Boulevard declined to go through with the deal. The ensuing suit for specific performance was, on July 24, 1974, settled by defendant agreeing to pay an additional $10,000 for the property, and defendant was thereby enabled to prove to the planning board ownership of that contiguous parcel of land in order to fulfill the minimum lot size requirement.
On the day following the settlement it applied for demolition and building permits. In evidence appears a "building permit" for foundation and excavation work and a demolition permit, both issued on July 29, 1975. On the demolition permit appears the handwritten notation, "demolition of one family dwelling and excavation and foundation for highrise condominium." The dwelling on 88 Boulevard has not been demolished and still stands. All buildings on 94-98 Boulevard had been demolished before purchase. The "building permit" did not allow for construction of the building, but merely for excavation and foundation work. The record is unclear what, if any, excavation work has been done.
Meanwhile, and before issuance of the above permits, a new zoning ordinance was adopted decreasing the permitted
density of use of the two lots; by its terms only 70 dwelling units, rather than the 101 units proposed, were permitted on the land. Unquestionably, defendant's proposed building did not comply with the new ordinance which was adopted before issuance of the permits but which became effective within weeks thereafter.
Although defendant admits nonconformity of the proposed building with the requirements of the new ordinance, it contended at trial that because of the issuance of the above described permits and its expenditures and actions in reliance on them and on the prior site plan approval, it acquired a vested right, akin to a nonconforming use, to erect the building despite the ordinance change.
As a preliminary matter, we dispose of defendant's contention that plaintiffs lacked standing to obtain injunctive relief, an issue not raised at the trial level, as being without merit. The individual plaintiffs are all neighboring property owners whose homes are directly across the street from defendant's proposed building, plaintiff Matule's home being only 75 or 80 feet from that property and plaintiffs Kuritsky only 125 feet away. Their concern that the proposed 101-unit apartment building would result in a population and traffic increase in the neighborhood, with the normal difficulties in parking and other incidents of increased density of use, constitutes sufficient special damages, distinct from and greater than that of the community as a whole, to provide them with standing to bring this action. Garrou v. Teaneck Tryon Co. , 11 N.J. 294, 300 (1953); Frizen v. Poppy , 17 N.J. Super. 390, 393 (Ch. Div. 1952); Yanow v. Seven Oaks Park, Inc. , 15 N.J. Super. 73, 80-81 (Ch. Div. 1951); Weber v. Pieretti , 72 N.J. Super. 184 (Ch. Div.), aff'd 77 N.J. Super. 423 (App. ...