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Trenkamp v. Township of Burlington

Decided: July 31, 1979.


Haines, J.s.c.


[170 NJSuper Page 257] A building permit was issued to defendants Buzzi on July 2, 1977 for the construction of a building described in the application as "Butler farmstead building, 36 ft. X 50 ft." The application indicated that the structure was being erected to house a workshop and to store antique cars, parts, garden tools and mowers. Actual construction of the building did not begin until August 17, 1977. By August 23 sidewalls, side supports and roof beams were in place; by August 27 the roof and walls were covered, and by August 31 the exterior had been completed. A certificate of occupancy for the building was issued on September 3. Various photographs introduced into evidence portray the structure as a large metal building located at the rear of the Buzzi lot.

At the time the permit was issued the pertinent part of the township's zoning ordinance read as follows:

16:3-2(21) Garage, Private. A building or space accessory to a residence which provides for the storage of motor vehicles and in which no occupation, business or service for profit is carried on.

19:6-1(2) Permitted Accessory Building and Structures.

(a) Private garages and car ports.

(e) Storage buildings of 200 square feet or less in area.

Although N.J.S.A. 40:55D-72 permits "any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance" to take an appeal to the board of adjustment "within 65 days," plaintiffs did not avail themselves of this remedy. Instead, they filed their complaint in the Superior Court on November 2, 1977.

The complaint sets forth four theories of relief. First, plaintiffs assert an action in lieu of prerogative writs against the township building inspector, contending that he issued the permit in violation of the zoning ordinance. They demand a judgment compelling him to revoke the permit and enforce the ordinance. Second, plaintiffs assert an action in lieu of prerogative writs against the township seeking to have it compelled to secure the Buzzi's compliance with its zoning ordinance. Both of these actions implicate two of the four former great writs, namely the writs of certiorari and mandamus. As is explained in McKenna v. N.J. Highway Auth. , 19 N.J. 270, 274-76 (1955), it is through the writ of certiorari that matters are brought before the court for review, while it is through the issuance of a writ of mandamus that relief is afforded to a litigant. Third, plaintiffs seek an injunction requiring the Buzzis to remove the structure because it violates the zoning ordinance. Fourth, plaintiffs demand an injunction requiring the Buzzis to remove the structure because it violates a deed restriction. The Buzzis,

in turn, seek damages from the township and its building inspector in the event plaintiffs are successful.

The case is presently before the court on motions for summary judgment based upon limited testimony and a stipulated factual statement. The facts upon which this opinion relies are not in dispute.

A. The 45-Day Rule

R. 4:69-6(a) requires that an action in lieu of prerogative writs be commenced not later than "45 days after the accrual of the right to review, hearing or relief claimed." Consequently, the threshold issue with regard to plaintiff's prerogative writ claims is whether they were prosecuted within the allotted time.

There was (and is) no statute requiring a public announcement in connection with applications for or issuance of building permits. Compare N.J.S.A. 40:55D-12. Consequently, plaintiffs had no constructive notice that a permit had been issued to defendants and, as stipulated, did not have actual notice until 46 days later when building commenced. Neither the filing of building plans with the office of the building inspector nor the public record concerning the issuance of the building permit constituted notice to anyone who did not actually see these records. The law does not saddle the public with an obligation requiring the constant scrutiny of voluminous official documents of the kind involved here in order to protect individual rights. See Farmingdale Realty Co. v. Farmingdale , 55 N.J. 103, 112 (1969). The unfairness in requiring a plaintiff to bring suit within 45 days from the date a building permit is issued, when he was ignorant of any reason to do so and without notice of any fact which would require that a diligent inquiry be undertaken, is obvious.

Nevertheless, a prerogative writ was dismissed under similar circumstances in Zimmerman v. Cherivtch , 5 N.J. Super. 590 (Law Div.1949). In that case a prerogative writ was filed on

June 30, 1949 to oust Cherivtch from the office of city commissioner, to which he had been elected on May 10, 1949. Plaintiff, one of the defeated candidates, alleged that Cherivtch had previously been convicted of a crime that rendered him ineligible for public office. In 1949 the time within which a prerogative writ could be filed was fixed by statute as 30 days.

Anticipating a problem with this time limitation, plaintiff alleged in his complaint that he did not know, and in the exercise of due diligence could not have known, that Cherivtch had been convicted of a crime that rendered him ineligible for office until June 17, 1949. On that date plaintiff read a newspaper report that defendant had admitted the conviction in a federal district court on the previous day. Further compounding plaintiff's problem was the fact that defendant had been convicted under the name of Samuel Cherivtch but was presently known as Simon M. Cherivtch. Consequently, plaintiff argued that his right to relief could not have accrued until he became aware of the conviction.

In response, the court stated that as a general rule "mere ignorance of the existence of a cause of action or of the facts which constitute a cause of action will not prevent the running of a statute of limitations or postpone the commencement of the period of limitation." 5 N.J. Super. at 593. However, it did acknowledge that when a cause of action has been fraudulently concealed or when the cause of action itself is one in which the plaintiff was an innocent victim of a fraudulent scheme, the limitations period does not begin to run until the plaintiff becomes aware of the wrong or of facts that should place him on alert. The court held that the record failed to disclose facts supporting either exception to the general rule and dismissed the complaint. Curiously, in view of its prior statement of the general rule, the court prefaced its conclusion with the comment that plaintiff's allegations of ignorance were "not supported by any proofs in the record." 5 N.J. Super. at 594.

Criticism of Zimmerman was not long in coming. In Marini v. Wanaque , 37 N.J. Super. 32 (App.Div.1955), an action in lieu of prerogative writs had been brought against the borough's building inspector. It alleged the wrongful issuance of a building permit and a certificate of occupancy. The trial judge dismissed the cause for several reasons, one of which was that the action had not been commenced within the 30-day limitation period required by the rule then in force regarding prerogative writ actions. Plaintiff claimed that he was unaware of the issuance of the permit until a date less than 30 days before he started suit. The Appellate Division disagreed, but discussed the problem of knowledge in reaching its conclusion.

Judge Conford started his analysis with the premise that an illegally issued building permit constituted a wrong for which a remedy could immediately be sought by commencing an action in lieu of prerogative writs. Therefore, unless plaintiff could avoid the general rule that a cause of action accrues when the facts that entitle one person to sue another come into existence, his complaint was barred by the 30-day limitation rule. To avoid this consequence, plaintiff argued that the limitations period should not commence to run until he knew or was chargeable with having known that the building permit was issued. After a discussion of Zimmerman this argument was rejected. The court said:

It is readily perceivable that strict application of the rule of the cited case could well work an unwarranted hardship in the classes of cases where the applicant for judicial relief was not the party directly involved in the municipal proceeding under attack and consequently neither knows of the illegal action taken, until after lapse of the limitation period, nor is so situated as to be on reasonable notice thereof. The facts of the present case do not require a determination as to whether the rule stated in the Zimmerman case should be held applicable in such a situation. It clearly appears here that plaintiff knew of the issuance of the building permit and what was being done under its authority well in excess of 30 days prior to his institution of the present action. R.R. 4:88-15(a) bars him under any reasonable concept of its proper interpretation. [37 N.J. Super. at 39.]

Other cases have touched upon the problem. Olsen v. Fair Haven , 64 N.J. Super. 90 (App.Div.1960), involved an action in lieu of prerogative writs commenced to challenge the validity of a building permit, issued on October 20, 1958. It was alleged either to have been void at the time of its issuance or to have been rendered void by a subsequent revision of the zoning ordinance, adopted on May 25, 1959. After construction began on July 20, 1959, two separate prerogative writ actions were filed. The trial judge consolidated the cases and dismissed both because, among other things, they were not filed within the 45-day limitations period. An appeal was taken by plaintiffs in one of these suits.

The Appellate Division affirmed the dismissal on the limitations question as to the original issuance of the building permit. In its opinion the 45-day limitations period commenced to run on the date that the permit was issued. Mentioning Marini's suggestion that justifiable ignorance might toll the running of the limitations period, the court went on to point out that Marini had been decided before the adoption of what is now paragraph (c) of R. 4:69-6. In pertinent part, this paragraph provides: "The court may enlarge the period of time provided in * * * this rule where it is manifest that the interest of justice so requires." The court implied that the proper procedure in such cases is to enlarge, rather than toll, the limitations period. Since plaintiffs had not explained the ten-month interval between the issuance of the permit and commencement of suit, no reason had been presented that would warrant enlarging the time period.

A different result was reached with regard to plaintiff's claim that the permit was void due to the revision of the zoning ordinance. Assuming that the construction authorized by the permit violated this ordinance, the court held that plaintiffs would have been justified in presuming that defendant would not make use of the permit. The court continued: "Therefore it was only when plaintiffs knew or should have known that these

defendants were about to commence construction in spite of the 1959 ordinance that they were obliged to take action." 64 N.J. Super. at 97. Since the record did not disclose that these plaintiffs knew or should have known of the construction prior to its actual commencement on July 20, the filing of the complaint on August 25 was within time. Accord, Sautto v. Edenboro Apartments, Inc. , 69 N.J. Super. 420, 435 (App.Div.1961); Band's Refuse Removal, Inc. v. Fairlawn Borough , 62 N.J. Super. 522, 540 (App.Div.1960), mod. , 64 N.J. Super. 1 (App.Div.1959), certif. den. 33 N.J. 387 (1960); Schultze v. Wilson , 54 N.J. Super. 309, 322 (App.Div.) certif. den. 29 N.J. 511 (1959).

This latter holding is difficult to square with the general definition of when a cause of action comes into existence. Under that definition plaintiffs' cause of action accrued as soon as defendants determined that they would proceed with the construction despite the passage of the revised ordinance. The court's focus on plaintiffs' awareness of this decision as the basis for deciding when the cause of action accrued appears to contradict its earlier analysis concerning the timeliness of the challenge to the original issuance of the building permit.

In Kohler v. Barnes , 123 N.J. Super. 69 (Law Div.1973), a prerogative writ action challenged the appointment of various individuals to an industrial commission as well as its overall composition. With one exception, all appointments to the commission had been made more than 45 days before the action was instituted. In considering the timeliness of the action, the judge reviewed the applicable law.

He began his review with a statement of the general rule which mirrors that set forth in Zimmerman: "Generally, a cause of action accrues when facts exist which entitle one party to maintain an action against another." 123 N.J. Super. at 79. Ignorance of such facts was said not to halt the running of the limitations period, except when either the facts had been fraudulently concealed or could not have been discovered through the exercise of due diligence. It was pointed out that Schack v.

Trimble , 28 N.J. 40, 48 (1958), had indicated that paragraph (c) of R. 4:69-6 "was intended to restate in the form of a generalized standard decisional exceptions which had been engrafted upon the former limitation rules." 123 N.J. Super. at 80. These exceptions are usually deemed to arise in cases that involve substantial and novel constitutional questions, informal decisions of administrative officials that fail to adequately crystallize disputes or important public interests requiring adjudication. Since plaintiff's claim did not fall within any of these categories, the complaint against the individuals appointed more than 45 days before commencement of the action was dismissed.

This survey of the case law demonstrates a certain amount of confusion surrounding the problem of knowledge. This confusion is generated because two questions have not yet been answered explicitly by our courts. First, should justifiable ignorance of the facts giving rise to a cause of action mitigate in some fashion the operation of the 45-day limitation period? ...

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