author: Lynch, J. A. D. Fkitz, J. A. D.

text:
    JOHN W. HILL AND ERONA J. HILL, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF EATONTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND JERRY CERAN AND EDITH V. CERAN, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted October 24, 1972
    Decided December 7, 1972.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Albert T. Berich, attorney for appellants (Mr. Daniel M. Waldman, on the brief).

      Messrs. Campbell, Mangini, Foley, Lee & Murphy, attorneys for respondents Board of Adjustment of the Borough of Eatontown (Mr. Michael J. Cernigliaro, on the brief).

      Messrs. Cerrato & O’Connor, attorneys for respondents Jerry and Edith Ceran (Mr. William J. Mehr, on the brief).
   The opinion of the court was delivered by

Lynch, J. A. D.

Plaintiffs John W. Hill and Erona J. Hill (Hills), next door neighbors of defendants Jerry Ceran and Edith Y. 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 31, 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 plyseore and partially shingled, the side of the garage and the rear of the addition had been rough-sheathed with plyseore. 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 ihe 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 wtih 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 Holier 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 through Justice Heher, said:

There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and tile irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice. [Id. at 004],

Further, in Jantausch, Judge Weintraub adverted to Marini v. Borough of Wanaque, 37 N. J. Super. 32 at 40 (App. Div. 1955), wherein the court, speaking of what it assumed to be an unauthorized issuance of a building permit, said “If anything, it was a mistaken or irregular exercise of a ministerial function,” rather than an action which is utterly void as in V. F. Zahodiakin &c., Corp., supra, and, as it was characterized in Donovan v. Gabriel and Gruber, 57 N. J. Super. 542, 547 (App. Div. 1959): “* * * a mistaken action on the part of the building inspector * * *” and therefore not “void.”

Thus the essential intent of Jantausch was that, if a permit was “irregularly” issued, but in good faith and within the ambit of the building inspector’s duty, it is not “utterly void” and estoppel is permissible with proper good faith reliance thereon. And so Jantausch was interpreted in Schultze v. Wilson, 54 N. J. Super. 309 (App. Div.), certif. denied 29 N. J. 511 (1959), where the court said at 323-324:

Although Judge Weintraub was concerned with an ordinance situation and not a building permit case, a reasonable interpretation of his “intermediate” category applies to the instant situation where the officer issues a permit “within the ambit of his duty” in the utmost good faith (there is no proof to the contrary herein) and the property owner accepts it in good faith and relies thereon. As the permit was within the jurisdiction of the inspector to issue even if it was issued irregularly, it was not utterly void. [Emphasis added].

So here, the issuance of the building permit to the Cerans was within the province of the general duties of the building inspector. It was not an act which he was “without capacity to make under any and all circumstances.” (Emphasis added). Rather it was a “mistaken or irregular exercise of a ministerial function” (Marini at 40) and “within the purview of his jurisdiction.” (Donovan at 547). Therefore it came within the “intermediate situation” referred to in Jantausch and estoppel is not precluded.

B3r way of analogy, in the area of municipal contracts, a contract which a municipality is “utterly without capacity to make under any and all circumstances” is void. One in which there is no lack of power in the municipality but in which there has been a mere “irregular exercise” of the power, is voidable. In the former category there can be no recovery on the contract. In the latter class there can be recovery upon the theory that one contracting with a public body, under such circumstances, is not obliged to scrutinize, at Ms peril, the corporate proceedings. Bauer v. City of Newark, supra; Campbell v. City of Hackensack, 115 N. J. L, 209 (E. & A. 1935), and cases cited therein. And here Cerans had a right to rely on the validity of the permit issued to them by the building inspector who had the ostensible power to issue it. Realistically, and in practical recognition of what an ordinary citizen would do in this circumstance, is that not so?

Plaintiffs5 contention that it is only when a permit is validly issued that estoppel applies is not well taken. In Jantausch, Judge Weintraub cited as an example of the "intermediate55 class the case of Kurowski v. Bd. of Adjustment of Bayonne, 11 N. J. Super. 433 (App Div. 1951). There the building department had no authority to issue a permit for the erection of a storage building in an “A55 residence zone. Yet the Appellate Division, adopting verbatim an opinion of then Judge Brennan, affirmed the grant of a variance for the prohibited use. And in Marini v. Borough of Wanaque, supra, also cited in Jantausch as in the "intermediate55 class, the court, without passing upon the validity of the building permit involved, dismissed the complaint of Marini, next door neighbor of defendant Gordon and holder of the permit, on the grounds of limitations and laches. The court said:

Finally, we think laches additionally bars plaintiff’s way. We are satisfied that he knew what was going on in respect to this structure and withheld his legal fire during a period in which he knew or had every reason to know that a substantial sum of money was being invested in the improvement of this property, [citing cases]. We are aware of the policy that laches should be invoked with hesitation against a taxpayer and citizen vindicating a public right, Garrou v. Teaneck Tryon Co., supra (11 N. J. at pages 306, 307, 94 A. 2d, at pages 338, 339), but we deem the application of laches plainly indicated in the present case. [Id. at 41],

The same principle of laches applies against the Hills here. Cf. N. J. S. A. 40:55-43.

Finally we conceive that the additional equitable doctrine of “relative hardship” applies here. Cf. Gilpin v. Jacob Ellis Realties, Inc., 47 N. J. Super. 26 (App. Div. 1957); Sautto v. Edenboro Apartments, Inc., 84 N. J. Super. 461 (App. Div.), eertif. denied 43 N. J. 353 (1964). If plaintiffs were to succeed, defendants would be compelled to destroy the improvements they had made before plaintiffs warned them of the possible violation. Id. at 476. That would be a severe hardship to defendants. Over and above the $3,500 already expended, it would cost defendants an additional $1,500, and would leave the new garage too small for its intended use. On the other hand, plaintiffs have suffered no discernible damage by the proposed construction and in fact the Board of Adjustment found that the side yard violation is consistent with many properties in the neighborhood. The resulting “gross inequity” warrants operation of estoppel against plaintiffs. Bonsall v. Township of Mendham, supra, 116 N. J. Super. at 346. While plaintiffs attempt to distinguish Bonsall from the instant situation, we read it as being distinguishable without a difference under the equitable principles here appropriate. Bonsall at 346.

Plaintiffs would have us ignore the “* * * strong recent trend towards the application of equitable principles of estoppel against public bodies where the interests of justice, morality and common fairness clearly dictate that course.” Gruber v. Mayor and Tp. Comm. of Raritan Tp., 39 N. J. 1, 13 (1962). The latter statement of our Supreme Court in Gruber was a reference to the Appellate Division opinion in the same case, appearing at 73 N. J. Super. 120. There Judge Gaulkin, for the Appellate Division, had pointed out that, even though the action of the municipality was truly void, equitable principles “akin to estoppel” had been applied in Hilton Acres v. Klein, 35 N. J. 570 (1961), and Tremarco Corporation v. Garzio, 32 N. J. 448 (1960). Gruber, supra, 73 N. J. Super. at 126-128. The Supreme Court, in affirming the Appellate Division decision in Gruber, adopted this philosophy. In simple language, estoppel will be applied against a municipality in the interest of equity and essential justice. Morality and common fairness clearly dictate that course. Gruber, supra, 39 N. J. at 12-17; see also Palisades Properties, Inc. v. Brunetti, 44 N. J. 117, 131 (1965); 405 Monroe Co. v. Asbury Park, 40 N. J. 457 (1963).

All of those concepts mandate judgment in favor of defendants. If estoppel and laches apply against the municipality so much the more so against plaintiffs, even though they be deemed to be acting vicariously for the municipality.

The judgment in favor of defendants is affirmed.

Fkitz, J. A. D.

(concurring). With stout conviction buttressed by the language of Gruber v. Mayor and Tp. Comm. of Raritan Tp., 39 N. J. 1 (1962), I firmly believe that estoppel is and should be the proud champion of justice, morality, and common fairness. Consequently, I find it difficult, in the factual milieu of this case, to disagree with the majority in its application of the doctrine. Basic and essential justice, morality and common fairness here insist absolutely that defendants Ceran be permitted to retain the vindication won in the court below.

But even this clear call fails to persuade me that inattention to (at best — and at worst, total disregard for) the apparent, plain, and unambiguous language of the terms of the zoning ordinance by the building inspector in the undertaking of his duties should generate an estoppel against the municipality, and this despite the so-called bona tides of the official and the lack of fraud. My reserve in this regard has a double predicate: First, a rule of estoppel thus bottomed might well serve to encourage fraud and reward indolence and intellectual indifference, all at the expense of the integrity of the zoning ordinance of a municipality. Second, reliance is an essential element of estoppel, Clark v. Judge, 84 N. J. Super. 35 (Chan. Div. 1964), aff'd o. b. 44 N. J. 550 (1965), and why should such a reliance be tolerated when, simply put, the apparent, plain, and unambiguous zoning proscription is readily available to be seen by the applicant? Proponents for such a rule ask, as the majority here seems to ask, why the “ordinary citizen,” not trained in the law, should be required to doubt the correctness of the building inspector, even to the degree of simply cheeking out his authority against the ordinance. The answer to this inquiry can only be found in a weighing, as a matter of policy, of the difficulty thus imposed on a citizen on the one hand, and the potential for debilitation of the zoning plan (with the concomitant effect on the property of all conforming owners) on the other. On my own scales I see greater and more far reaching dangers if blind reliance by the applying owner is sanctioned. I would eschew reliance in such a situation.

I freely confess that I do not find the situation to be black and white. Considering that an estoppel against the municipality is an infringement to a greater or lesser degree on the rights (and reliances) of each of its individual citizens, the equities are fairly balanced. The case for estoppel made out in the opinion of the majority is engagingly persuasive. But in respectful disagreement with the conclusion of my brethren I think it is not yet the law. In Esso Standard Oil Co. v. North Bergen Twp., 50 N. J. Super. 90 (App. Div. 1958) proximity to a school in the case of a service station was the defect rather than, as here, proximity to a side line in the case of a house. There the permit was issued “through honest mistake,” and there was reliance and there were expenditures not capable of recapture. This court held no estoppel. The decision was cited in Saddle River County Day School v. Saddle River, 51 N. J. Super. 589, 606 (App. Div. 1958), aff'd o. b. 29 N. J. 468 (1959) as support for the proposition:

It is now definitely settled in our law that a municipality is not estopped from revoking a permit invalidly issued even where the invalidity was not the fault of the applicant and the latter had proceeded to do some work in reliance thereon.

To the same effect is Adler v. Dept. of Parks, Irvington, 20 N. J. Super. 240 (App. Div. 1952) and Giordano v. Dumont, 137 N. J. L. 740 (1948), the latter expressly charging the owner with notice, actual or constructive, of the invalidity of the permit. The policy considerations involved in that deposition of duty, balanced on the delicate scales to which I adverted above, seem to me to commend the Giordano rule.

Of the greatest concern to me here, however, is the broad sweep of the majority brush in its effort to employ this hard facts case to make applicable and to resolve for all time • — ■ as it someday must certainly be resolved — the “intermediate situation” left undecided in Jantausch v. Borough of Verona, 41 N. J. Super. 89 (Law Div. 1956), aff'd 24 N. J. 326 (1957). As there described in the Law Division opinion, that is the situation, between the opposite extremes of a clearly valid and a clearly invalid permit, which eventuates when “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[.]” (41 N. J. Super. at 94.)

That the matter at hand lies outside the question thus defined is illustrated by the simple inquiry: What can there possibly be about an express seven-foot side line restriction which requires any interpretation, or allows as a debatable interpretation the theory that four feet is good enough?

Not does the majority opinion here modify the Janlausch inquiry sufficiently to bring this case within the issue, because after rejecting “semantic obfuscations” the majority still employs, as a component in the question formula, the “mistaken judgment” of the building inspector. I humbly suggest that “'judgment” was no more a necessary element of the decisional process of the building inspector here than was that process merely a “mistaken or irregular exercise of ministerial function.” Seven feet may well be seven feet one inch or six feet eleven depending upon whose ruler the building inspector’s discretion chooses. But I cannot see the overlooking of a seven foot restriction for a four foot permit as a matter of judgment or an interpretation which even most generously might be regarded as debatable.

If, on the other hand, the majority construes Jantausch to require nothing more than good faith on the part of both the building inspector and the owner, coupled of course with reliance and detriment, then I must respectfully disagree.

A more appropriate question, in Jantausch terms, might be whether the defect here — the differential between the four and seven feet ■— was a sufficient demonstration of “no semblance of compliance with or authorization” to constitute a jurisdictional impediment at the one Jantausch extreme and in accordance with the cases there cited. For this, too, is a hard question the answer to which in my view is not simply reached as being at the easy extreme and certain proscription. It seems to me in the appropriate case, the law could say in good conscience that the act of the building inspector was in fact ultra vires but, all things considered, not to a fatal extent. As against an anticipated complaint that such a rule is extraordinary and perhaps akin to being only partly dead, I suggest that, as our reported opinions confirm, these are almost always hard cases requiring an extraordinary and imaginative approach in the interest of justice. Insistence on fixed standards and intransigence would isolate this field from the salutary ongoing development which is both the hallmark and the strength of our common law.

But in my view such pafchfinding is not necessary here. I would sustain the result below — and I again candidly acknowledge that elemental justice, morality, and common fairness seem to me in the circumstances of this case absolutely to require that result — on the obvious validity of the variance.

I have no doubt that the prerequisites prescribed by N. J. 8. A. 40:55~39(e) are sufficiently found in the resolution of the Board of Adjustment, and have adequate support in the record. Additionally, it is obvious that the so-called negative criteria, i. e., those necessary to assure that the relief granted is without substantial detriment to the public good and does not substantially impair the intent and purpose of the zone plan and zoning ordinance, have been satisfied. The plethora of homes with side yards of less than seven feet on both sides, to say nothing of the additional homes where one side yard was less than seven feet (and some of the foregoing the result of reasonably recent variances), alone seems to satisfy the negative criteria.

1 have no doubt that a so-called hardship case involving a subsection (c) variance cannot be supported solely by difficulties “personal to the owner * * * unrelated to the physical characteristics of the land * * Isko v. Planning Board, Tp. of Livingston, 51 N. J. 162, 174 (1968). Nor do I labor under a misimpression that a hardship created by acts of the owner constitutes the type of thing for which a subsection (c) hardship variance is designed. Place v. Board of Adjustment of Saddle River, 42 N. J. 324, 331 (1964). (However, it should be observed in Place that construction of the prohibited building was commenced without a building permit.) On the other hand, I think we need not, and in this case should not, limit the situation for variances under subsection (c) to so-called hardship cases. A completely reasonable interpretation of the intent of the legislature as it might well be derived from a consideration of the several disjunctives in the statute suggests that while topographic conditions and physical attributes are the prime bases for a subsection (c) variance, “other extraordinary and exceptional situation [s] or condition [s] of such piece of property” will undergird such a variance if the result otherwise were to be “peculiar and exceptional practical difficulties to” the owner of such property. It is to be observed that the language employed in the statute distinguishes by disjunctive between situations and conditions of the property and distinguishes between practical difficulties and exceptional and undue hardship. I am of the opinion that this play in the joints of the machine was intentionally designed by a farseeing legislature to accommodate precisely the type of situations here presented. Through no fault of the owner (and I am speaking of the owner’s activities j I have not returned to a consideration of estoppel), his land is now burdened with structural change that creates an “extraordinary and exceptional situation” resulting in “peculiar and exceptional practical difficulties” to him.

For this reason I agree with the majority that the determination below should be affirmed.

       Perhaps this is really all the majority opinion is suggesting. If so, I am in hearty accord. But I do not believe this requires any estoppel.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES F. McCUE AND JOSEPH VENTRIGLIA, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted November 27, 1972
    Decided January 17, 1973.

      Before Judges Lora, Allcorn and Seidman.

      Mr. Frank Metro, attorney for appellants (Mr. Lawrence Friedman, of counsel).

      Mr. Stephen B. Champi, Prosecutor of Somerset County, attorney for respondent (Mr. Leonard N. Arnold, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

Defendants appeal their convictions of false swearing, on jury verdicts.

The indictments arose out of testimony given by each of the defendants at a trial in the municipal court of Bernards Township on January 37, 1969. Defendant McCue had been charged with two motor vehicle offenses — careless driving and failure to obey the direction of a police officer — under N. J. S. A. 39 :4-97 and 39 :A-57, respectively, on October 5, 1968 at about 9 :30 p.m.

At the trial in the municipal court defendant McCue testified, in substance, that at the time of the occurrence of the offenses he was physically present at the home of a friend, Kathy Loughlin, attending a party; that he arrived at the party in company with defendant Yentriglia at about 8:50 or 8:55 p.m. and remained until 9:45 or 9:50 p.m. ; that while still at the party he loaned his car to Yentriglia so that the latter might "go out with his girl [Kathy Loughlin]”; that he gave Yentriglia the car keys at 9:15 or 9:30 p.m., and that Yentriglia returned at times variously estimated by McCue to be 9 :35 p.m., 9:40 p.m. and 9:45 p.m. Although McCue also testified that he had told the police that he had not ben driving the car, at no time during the proceedings did he testify directly that he had not been driving the car.

Defendant Yentriglia testified at the municipal court trial to the effect that he had arrived at the party with McCue "somewhere around nine”; that he left the party with Kathy Loughlin at about 9:15 p.m. and drove to Bernardsville in McOue’s car, with Kathy Loughlin driving; that during their drive he observed a police officer signaling them to stop, and the girl “'started to stop and then she kept going,” and that thereafter they returned to the party, arriving at about 9 :40 p.m. Kathy Loughlin did not testify.

At the conclusion of the trial the judge of the municipal court made the following findings and conclusions:

I think what we have here is an obvious inability on the part of the State to identify the defendant who has been charged with the offense. There is no doubt that the offense occurred, and 1 have no doubt that it occurred in this car. I think that the testimony is clear that Mr. McGue was not the operator of the vehicle at the time. I recognize that an officer thought that he recognized Mm wMle driving but under such circumstances, at night, at a high rate of speed, with high beams in his eyes, and I don’t feel that the degree of proof necessary to overcome the presumption of innocence has been established by the State. Accordingly there will be a finding of not guilty.

A review of the evidence at the trial on the false swearing in die ¡meats plainly points to the guilt of each of the defendants. Notwithstanding, defendants contend on this appeal that since McGue was found to be not guilty on the trial of the motor vehicle charges, the State is barred from prosecuting either of them for false swearing, under the doctrine of collateral estoppel. They argue that, on the occasion of the municipal court trial, the issue was whether McGue was driving the automobile at the time and place charged; that such issue was determined in favor of McGue by the judge of the municipal court, and that inasmuch as the false swearing charges involve precisely the same issue, the municipal court determination is res judicata and forever dispositive of the issue between the State and the defendants.

This question has been considered in a number of jurisdictions. Most hold to the view that a defendant who gives false testimony at his trial on a criminal charge may be prosecuted for perjury or false swearing by reason of such testimony, despite the fact that conviction on the perjury charge “necessarily imports a contradiction of the verdict of not guilty in the former trial.” People v. Niles, 300 Ill. 458, 133 N. E. 252 (Sup. Ct. 1921). Much is to be said for th philosophy underlying the rule set forth in Niles:

* * * rji^g e££ect 0f sustaining the contention of plaintiff in error would be to hold that an accused in a prosecution against him may-practice a fraud upon the court and the jury and secure his acquittal by means of this fraud perpetrated by and through the medium of his false testimony, and then have the fraud sanctioned to the extent of making the judgment of acquittal conclusive evidence of his innocence in swearing that he was not guilty of the offense charged, although in truth and in fact he might have been proven guilty beyond a reasonable doubt and convicted if all the facts in the case had been truthfully put before the court and the jury. When an accused is put upon his trial and acquitted, that is an end of the matter, and so if in a prosecution against him he could by giving false testimony secure a judgment of acquittal when, if the truth had been known, there would have been a judgment of conviction, it would necessarily follow that he could commit two crimes against the state — one, the offense with which he was charged in the prosecution in which he gave false testimony, and the other, the crime of perjury — and go free of punishment for each. * 9 *
Justice cannot be administered through a system of courts unless there can be some assurance that the finding of the court is based upon testimony truthfully given. Any rule which tends to encourage the giving of false testimony threatens the peaceable and commendable settlement of controversies by the courts. The general proposition that one can escape punishment for perjury because he succeeded in inducing a jury to credit his false testimony is supported neither by authority nor by reason. * * * An accused’s immunity from punishment for crime must not be made to depend upon the accomplishment of his acquittal in one prosecution by committing the crime for which he claims immunity. It is furthermore the policy of the law that judicial proceedings and judgments shall be fair and free from fraud, and that litigants and parties be encouraged, when sworn as witnesses, to tell the truth, and that they be punished if they do not. * * * [133 N. E. at 253-254]

See also, Annotation, “Acquittal as bar to a prosecution of accused for perjury committed at trial,” 37 A. L. R. 1290 (1925); 3 Wharton’s Criminal Law and Procedure, § 1328 (1957); 60 Am. Jur. 2d, Perjury, §51 (1972).

The federal courts and some few other jurisdictions, however, take the more liberal position that in those cases in which “the basic facts forming the foundation of the two prosecutions are identical, an acquittal upon one charge precludes a second prosecution.” Wheatley v. United States, 286 F. 2d 519, 520 (10 Cir. 1961). Where, however, the false testimony relates to collateral matters not necessarily determined by the verdict at the first trial and not necessarily inconsistent with the accused’s innocence of the charge, the acquittal of a person charged with a criminal offense is held not to bar his subsequent indictment and prosecution for the perjury or false swearing committed by him at the first trial. United States v. Williams, 341 U. S. 58, 71 S. Ct. 595, 95 L. Ed. 747 (1951); Annotation, “Acquittal or conviction as bar to prosecution of accused for perjury committed at trial —• federal cases,” 95 L. Ed. 755 (1951). These same jurisdictions consistently take the position that false testimony as to alibi relates to a collateral issue not necessarily determined by or necessarily inconsistent with the not guilty verdict on the trial of the first charge. See, e.g., Lipscomb v. United States, 33 F. 2d 33 (8 Cir. 1929); Kuskulis v. United States, 37 F. 2d 241 (10 Cir. 1929); Adams v. United States, 287 F. 2d 701 (5 Cir., 1961); Commonwealth v. Rose, 214 Pa. Super. 50, 251 A. 2d 815 (Super. Ct. 1969).

Thus, whether the liberal or the more stringent view be followed, there is no basis for invoking the rule of collateral estoppel in the present cause. At best, the false testimony of defendant McCue related to the collateral issue of alibi. It dealt with his continued presence at the party during the critical time period. Except for the question as to whether the motor vehicle violations charged were actually committed, the single question in issue before the municipal court, and the sole determination by the municipal judge, centered upon whether McCue was driving the automobile when the motor vehicle violations occurred. The determination of that issue did not necessarity involve — nor did it decide — that McCue was or was not present at the party. Indeed, it is obvious from the conclusions of the judge that his finding of not guilty was predicated on the failure of the State’s proofs to establish beyond a reasonable doubt that McCue was, in fact, the driver at the time the motor vehicle violations were committed. Adams v. United States, 287 F. 2d 701 (5 Cir. 1961); United States v. Nash, 347 F. 2d 1382, 1385-1386 (4 Cir. 1971). Cf. State v. Emery, 27 N. J. 348 (1958).

Cases such as State v. Cormier, 46 N. J. 494 (1966), cited by defendants, are not here applicable. They deal with the problem of successive prosecutions on multiple charges arising from a single episode — as, for example, in Cormier, a prosecution on the substantive charge of fraudulently obtaining a loan, after acquittal on the charge of conspiracy to fraudulently obtain a loan, both charges growing out of the same transaction. See United States v. Gremillion, 464 F. 2d 901, 906 (5 Cir. 1972), cert. den. 409 U. S. 1085, 93 S. Ct. 683, 34 L. Ed. 2d 672 (1972); State v. Thomas, 61 N. J. 314, 319 (1972).

We conclude, therefore, that the prosecution of defendant McCue under the false swearing indictment is not barred by virtue of the not guilty finding by the judge of the municipal court. So far as concerns defendant Ventriglia, “We have found no support for the astonishing contention that all witnesses in a successful defense of a criminal prosecution are immunized from subsequent charges of perjury under the doctrine of collateral estoppel.” Falk v. United States, 370 F. 2d 472, 475 (9 Cir. 1966), cert. den. sub nom. Wendell v. United States, 387 U. S. 926, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967).

Defendants make the additional contentions that the trial court committed error, (1) in admitting into evidence any portion of the transcript of the trial in the municipal court, because it was based on a tape recording, “which no longer was in existence,” and (2) in excising therefrom “all testimony but that of defendants.” The accuracy of the transcript was fully authenticated by the testimony of the municipal judge who heard the charges, as well as by the person who transcribed the recording. Cf. R. 7:4r-5. Likewise, there was no abuse of discretion or other impropriety in admitting into evidence only those portions of the transcript containing the testimony of the defendants. State v. Clawans, 38 N. J. 162, 169 (1962).

Lastly, defendants urge that the “trial court erred in not dismisisng the indictment,” and that the “State failed to make out a case against the defendants and the defendants should have been acquitted.” We find no merit in either contention.

Accordingly, the judgments of conviction of both defendants are affirmed.

       This without regard to the serious question of the applicability of the rule of collateral estoppel where, as here, the first proceeding is a prosecution for violation of the motor vehicle laws not constituting criminal offenses, State v. Shoopman, 11 N. J. 33 (1953) ; State v. Currie, 41 N. J. 531, 542-544 (1964).


author: Ptsr Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. RAYMOND HYERS, DEFENDANT. WALTER STRINGER AND FLORENCE STRINGER, GUARANTORS-APPELLANTS, v. STATE OF NEW JERSEY AND THE COUNTY OF MONMOUTH, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 5, 1972
    Decided January 24, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Ralph. A. Real argued the cause for appellants.

      Mr. Frederick J. Kalma, Assistant Prosecutor, argued the cause for respondents (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney).
   Ptsr Curiam.

Defendant Plyers was convicted of incest after a jury trial and sentenced to a term of three to five years in State Prison, Trenton. On March 12, 1970 he was released on bail of $5,000 by order of this court, pending disposition of his appeal. A bail bond was posted by the Stuyvesant Insurance Company but only after Stuyvesant had obtained a collateral guarantee from Walter and Florence Stringer, who are the brother-in-law and sister of defendant.

Hyers’ conviction was affirmed by this court in an unreported opinion on November 3, 1971. Thereafter the Proseculor of Monmouth County unsuccessfully sought to have Hyers brought into custody or to have his bail bondsman produce him so that he might begin serving his sentence. On November 13, 1911 the prosecutor moved for a forfeiture of the bail, which was granted. Upon the entry of the order of forfeiture, the insurance company called upon the Stringers as guarantors to pay the sum of $5,000 plus $236.32 costs pursuant, to their guarantee. This amount was paid on January 12, 1972 and on the following day Stuyvesant paid over $5,000 to the Treasurer of the County of Monmouth.

Thereafter, through the efforts of the Stringers defendant v as found and apprehended in the State of Illinois and, after waiving extradition, brought back to New Jersey. Immediately after Hyers was returned to the New Jersey authorities a motion was made on behalf of the Stringers as guarantors and Hyers to vacate the forfeiture. No affidavits were submitted in support of the motion, the reason assigned being a statement that Hyers was back in State Prison, Trenton.

We gather from the record that the prosecutor and Monmouth County Counsel had indicated to counsel for the Stringers that since the Stringers were instrumental in the apprehension of Hyers in Illinois, the county would be satisfied with reimbursement for its expenses in returning Hyers and that of the County Counsel. The trial judge, however, refused to vacate the forfeiture in whole or in part and this appeal followed.

A forfeiture of bail may be set aside in whole or in part if it is found by the court that “its enforcement is not required in the interest of justice * * B. 3:26-6(b). As we read the record, the trial judge appears to have determined that a decision as to whether the “interest of justice” will be served requires only a consideration of whether there has been some excuse for the nonappearance of defendant. We find this interpretation of B. 3:26-6(b) to be too restrictive. There are other factors that should be considered by a trial judge when the rule is invoked. The determination to be made is essentially equitable in nature and should include: (a) whether the applicant is a commercial bondsman; (b) the bondsman’s supervision, if any, of defendant during the time of his release; (c) the bondsman’s efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the State because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.

As we have heretofore noted, the record here is totally barren of any facts which would aid in considering the factors just mentioned. We have before us only certain representations made at oral argument which we find to be inadequate for a proper resolution of the question. Accordingly, we reverse the determination of the trial court and remand the matter for proceedings in accordance with this opinion.

We do not retain jurisdiction. Reversed.


author: Pm Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MARIO MOLINARO, ROCCO CICCHETTI, PETER JOSEPH VERDICCHIO, EMANUEL MONTALBANO, AND MICHAEL MAURIELLO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1973
    Decided January 25, 1973.
    Before Judges Carton, Mintz and Crahay.

      Mr. John A. Brogan, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Michael A. Querques argued the cause for respondent Montalbano (Messrs. Querques, Isles & Weissbard, attorneys).

      Mr. John P. Russell argued the cause for respondents Molinaro, Verdicchio and Mauriello (Messrs. Russell & McAlevy, attorneys for respondent Molinaro; Messrs. Herrmann & Blasi, attorneys for respondents Yerdicchio and Mauriello).

      Mr. Frank A. Paglianite filed a statement in lieu of brief for respondent Roeco Cicchetti.
   Pm Curiam.

We granted leave to the State to appeal from an interlocutory order 117 N. J. Super. 276, granting defendants’ motions to suppress evidence obtained through the interception of telephonic communications by the New Jersey State Police under the New Jersey Wiretapping and Electronic Survelliance Control Act, N. J. S. A. 2A:156A-1 el seq. The telephonic interceptions were made pursuant to appropriate orders authorizing same.

In essence the trial judge found that the State violated the mandate of N. J. S. A. 2A:156A-12(f), which provides that interceptions be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act. Consequently, the trial judge held that all incriminating conversations should be suppressed. Subsequent to that determination our Supreme Court dealt with the precise issue in State v. Dye, 60 N. J. 518 (1972), cert. den. 409 U. S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972).

In Dye the court alluded to the instant case, noting that it was under review, and that while it would not follow any portion of it which conflicts with its. holding, it reserved consideration thereof until faced with the appeal to that court.

We have carefully reviewed Bye, and conclude that it is dispositive of the issue before us.

Beversed.


author: McGowan, J. S. C.

text:
    BAYSHORE SEWERAGE COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF NEW JERSEY, AN AGENCY OF THE STATE OF NEW JERSEY, TOWNSHIP OF HAZLET, A MUNICIPAL CORPORATION OF NEW JERSEY, HAZLET TOWNSHIP SEWERAGE AUTHORITY, A PUBLIC AUTHORITY OF NEW JERSEY, AND BAYSHORE REGIONAL SEWERAGE AUTHORITY, A PUBLIC AUTHORITY OF NEW JERSEY, AND STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 15, 1973.

      Mr. William, R. Holzapfel for plaintiff.

      Mr. Morton I. Greenberg for defendant Department of Environmental Protection and State of New Jersey.

      Mr. John E. Holobinko for defendants Township of Hazlet and Hazlet Township Sewerage Authority.

      Mr. William J. O’Hagan, Jr. argued the cause for defendant Bayshore Regional Sewerage Authority.
   McGowan, J. S. C.

This matter was tried before the court as a result of a complaint filed by plaintiff Bayshore Sewerage Company, appealing from an order of the Department of Environmental Protection of the State of Mew Jersey dated Eebruary 3, 1971 issued to the plaintiff. The appeal is taken under the provisions of N. J. S. A. 58:12-2 which, at the time of the institution of this action, provided in part as follows:

Any person, corporation or municipality aggrieved by tbe finding of the department may bring a civil action in the Superior Court at any time within three months after being notified thereof, and said court may hear and determine such action in which the court may proceed in a summary manner or otherwise, and thereupon may affirm the finding of the department or reverse or modify the finding in whole or in part as the court shall deem just and reasonable.

It is to be noted that by chapter 44 of the Laws of 1972 this section was amended, effective June 1, 1972, to delete the provision for the bringing of a civil action in the Superior Court and providing instead that any person aggrieved by such order of the Department would be entitled to a hearing before the Department upon notice, rather than to bring an action such as the one herein. Motion was made on behalf of all defendants at the close of plaintiff’s case, and the defense was previously raised, that plaintiff had not exhausted its administrative remedies and therefore was not entitled to relief in this action. However, no application was made to have the matter heard by the Department. The court reserved decision on the motion and proceeded to a full hearing, so that now a complete record is available. It is the court’s determination that such motions should be denied and that the defenses are without merit for the reason that at the time the action was instituted this was the legislatively directed action and procedure to be taken, and under all the circumstances of this case, taking into consideration the position of the State Department of Environmental Protection, to require plaintiff to go before the Department for a hearing would be a useless procedure. The Court should assume and does assume jurisdiction. The argument made that the original order here involved was issued without hearing is now without merit by reason of the present iitigation.

The background of the incidents giving rise to this litigation is of the utmost importance to a full understanding of the issues involved. The following determination of facts is hereby made, although for the most part practically all of these facts have been conceded in some fashion or other and are not really in dispute. Plaintiff is the owner of a sewage treatment plant and a collection system within a franchised area located in the Township of Hazlet in the County of Monmouth and State of New Jersey serving approximately 2200 customers. Most of its customers are within the franchised area but approximately 300 are located outside of the franchised area. It is a public utility corporation employing rates and franchises as have been heretofore granted by the State Board of Public Utility Commissioners since its original inception in 1957. The State Department of Health, predecessor to defendant Department of Environmental Protection, issued the original permit for the construction of the plant and approved the plans for the construction thereof on February 1, 1957, and thereafter issued and granted subsequent permits which in effect authorized additional connections to be made and additional sewage to be treated. The initial plant as constructed had the capacity to serve 1500 homes. The original permit for construction contained certain conditions in the permit issued which allowed the construction of the treatment plant for “the purpose of releasing the sewage into ‘Flat Creek’ a tributary of Raritan Bay.” The pertinent conditions, among others, are the following:

(1) That the permit is revocable or subject to modification or change at any time when in the judgment of the State De-Xiartment of Health of the State of New Jersey such revocation, modification or change shall be necessary.
(2) That the issuance of this permit shall not be deemed to effect in any way action by the State Department of Health of the State of New Jersey on any future applications that may be made for permission to discharge additional sewerage or industrial wastes into the waters of the State.
(9) That this permit to construct a sewerage treatment plant herein referred to does not exempt or shall not he construed to exempt the applicant Bayshore Sewerage Company Inc., 250 Mechanics Street, Red Bank, New Jersey, from complying with the rules or regulations and policies or laws lodged in any agency or division in this state having legal jurisdiction.

In addition to these stated provisions there were certain requirements in regard to the amount, type and quality of effluent that was to he discharged into Elat Creek, and there were certain requirements with regard to the biochemical oxygen of the effluent, referred to as B. O. D. With the issuance of the building permit there was also issued a use permit which contained identical conditions. As before stated, several permits were thereafter issued from time to time for construction and use permitting additional sewage to be processed, beginning on May 22, 1957 and down to and including August 27, 1964, totaling 12 in all. All of these contain the same conditions set forth in the original permit. The permit of August 27, 1964 was issued pursuant to an application made to construct additions and alterations to the existing treatment plant which, if completed, would have provided facilities for the treatment of approximately 3000 homes instead of the 1500 homes originally authorized. This permit had a provision, as had all the other building permits referred to, providing “the approval of plans and/or other engineering data for the above work shall remain in force for a period of only two years from the date of approval unless the said works are constructed or the contract awarded for the construction of such works.”

I find that admittedly the work under this permit was never completed at any time although some minor work was done in order to keep the plant functional which did not however constitute any enlargement of the facilities. In 1965, the Legislature enacted L. 1965, c. 121, and this law is known as “State Public Sanitary Sewerage Eacilities Act of 1965.” A statement of intent is included in the act which provided that it was the “public policy of the State of New Jersey to encourage and support, as hereinafter provided, the promotion, planning, development and construction of public sanitary sewerage facilities, including sewage collection, transmission, treatment and disposal works on a regional or multi-unit basis.” N. J. 8. A. 26 :2E-2. In the interim, and going back to about the year 1962 or 1963, as was conceded by plaintiff’s witnesses, Nero and Rinkade, the plant was not able to efficiently treat the sewage it was collecting and admittedly was then and is now in violation of the conditions of the permits issued with respect to the quality of the effluent being discharged into Elat Creek.

Elat Creek empties into Raritan Bay. Raritan Bay is a tidal body of water and Flat Creek is tidal for about half its distance from Raritan Bay to plaintiff’s treatment plant, which is located approximately iy2 m'iles from the Bay. On April 6, 1966, the State Department of Health issued an order to plaintiff to improve its plant by the construction of certain additions for which a permit had been issued, as before stated, in 1964 and which additions, as before stated, have not in fact ever been constructed. On April 19, 1961 the State Department of Health revoked the building permit it had issued on August 21, 1964, and reference was made in the letter of revocation that sewage would now be handled by the regional plant in the area under the now state-wide policy of regionalization.

In the meantime, it appears that in 1966 the Township of JIazlet had created a municipal sewerage authority, and negotiations were going on with this authority, which had succeeded to the township committee of the Township of I-Iaziet (formerly known as Raritan Township) in arranging for the disposition of sewage in the township. It appears from the testimony presented, and I find, that during this period of time efforts were made by the local township authority to have the State Department of Health rescind its permit given in 1964 so as to permit enlargement of plaintiff’s plant, for the reason that it was negotiating to purchase it and, among other things, did not want to have the extra burden of cost involved in any addition.

About two years later, in 1968, the Townships of Holmdel and Hazlet and the Borough of Union Beach, pursuant to N. J. 8. A. 40:14A-1 et s&q., created by adoption of parallel ordinances what is known as the Bayshore Regional Sewerage Authority. This authority is named as one of the defendants in this case, along with the Hazlet Township Committee, the Hazlet Township Sewerage Authority and the State Department of Environmental Protection. The adopted ordinances by their language limited the power of the authority to installing, maintaining and operating trunk lines and sewage treatment plants for the processing, collecting and treating of the effluent from sewer lines and mains installed, maintained, operated and controlled by the participating municipalities or local sewerage authority counterparts. It also appears during this time period that the Township of Hazlet Sewerage Authority purchased the facilities and plant of another existing privately owned sewerage company serving about 500 customers in Hazlet Township, known as the Raritan Valley Sewerage Company, which it still owns.

The order herein appealed from, dated February 3, 1971, among other things recites in the preambles a determination that plaintiff “discharged improperly, inadequately and insufficiently treated sewage into Flat Creek, a tributary of Raritan Bay, thereby causing or threatening injury to the inhabitants of this state either to their health, comfort or property in violation of N. J. 8. A. 58:12-2. “The order further recites that the master sewage plan had been developed by the Bayshore Regional Sewerage Authority which establishes the method for providing sewage facilities for the area of Hazlet Township presently being served by plaintiff. It further makes a determination that the State Department of Environmental Protection is of the opinion that in order for the sewage to be properly, adequately and sufficiently treated, treatment and disposal facilities must be provided in the manner approved by the Department. The order of April 6, 1966 is specifically rescinded and plaintiff ordered to cease the discharge of sewage and other polluting matter except in a manner approved by the State Department in accordance with the master sewage plan of the Bayshore Regional Sewerage Authority when such facilities become available. Plaintiff herein is further ordered to submit to the Department, on or before March 15, 1971, its program for ceasing such pollution.

The order of April 6, 1966 referred to was an order of the Department to plaintiff requiring that on or before August 15, 1966 plaintiff improve the sewage treatment works. As before related, that order was followed by the order of April 19, 1967 revoking the building permit which had been issued on August 27, 1964. Plaintiff replied to the order of .February 3, 1971 by letter written through its attorney on March 12, 1973, indicating that it would improve its plant and, as an alternate, suggested that sewage be treated by the Bayshore Regional Sewerage Authority, but that this would he subject to negotiation of an equitable and fair rate and upon just compensation being paid to plaintiff for the facilities of the company. This proposal was not accepted.

I further find and determine that during the period of time while ail this was transpiring, negotiations were going on with the Hazlet Sewerage Authority working toward a pu reliase by the Hazlet Sewerage Authority of plaintiff’s facilities, in fact, these negotiations got to a point where contracts were drawn for a price of $1,590,000 and submitted to a meeting of the Authority for approval, hut was defeated by a vote of 3-2 at the meeting, so the purchase was never consummated. Leading up to this final action of n on con summation were many conferences and negotiations and meetings with lawyers and bonding attorneys. During this interval plaintiff did take on additional customers at the request, in some instances, of municipal officials, including such faculties as the municipal building and one or more schools and a development. As to such additional customers, consent was given in most instances by the State Department of Health or Department of Environmental Protection permitting plaintiff to service such customers, notwithstanding that it was conceded by all that the facilities were not adequate to do so.

Plaintiff now seeks by this appeal alternate relief, either by a reversal of the order of February 3, 1971 or a modification thereof to allow the plaintiff to improve its plant, or for defendants or one or more of them to provide just compensation for the plant —• in other words, inverse condemnation. It was agreed at the outset of the trial that the only determination to be made by the court in this respect is a determination of whether the order should be reversed, modified or, if left to stand, whether plaintiff is entitled to compensation by way of damages. The issue of damages, if allowed, was to be tried separately hereafter.

In support of its contention, plaintiff alleges that the order of February 3, 1971 was procured through the illegal acts of all the defendants in that they conspired to have such an order issued in order to force plaintiff to a commitment to the proposed regional treatment plant. Further, that the order is null and void as to plaintiff because unreasonable, arbitrary and capricious as it forces plaintiff to abandon its treatment plant without just compensation and is in violation of the constitutional requirements in that respect. Moreover, that it would be unreasonable to require plaintiff to abandon its treatment plant by reason of the conduct of the parties, particularly Hazlet Sewerage Authority, when the Authority and the State Department of Health were insisting and requesting that additional customers be added, resulting in the treatment plant working at over capacity while at the same time not allowing plaintiff to expand its plant due to threats of condemnation and demands of Hazlet Township Sewerage Authority. Additionally, that its plant and mains constitute a property right and where taken or required to be abandoned requires that just compensation be paid therefor.

Defendants generally, by way of defense, argue that plaintiff is not possessed of any property right which is the subject of condemnation inasmuch as its entire operation and the permits issued in connection therewith, and the authority-given to construct and operate were given under a permit or license which is revocable; that the revocation thereof by the state agency which issued the permits is reasonable and! not arbitrary or capricious and is part of an overall plan statewide for the affected disposition and treatment of sewage by a regional program; that there is no property right obtained which is compensable by way of inverse condemnation; that there is no provision in the law authorizing the plan or compensation; that the action of the state agency is a reasonable and proper exercise of the police power of the State to protect the health and welfare of its citizens and of its property, and that the portion of tidal waterways effects the public trusts in lands owned by the State. Defendant municipal sewerage authorities, including the Hazlet Sewerage Authority and the Bayshore Regional Sewerage Authority and the State Department, did not conspire to deprive plaintiff of any of its rights or property and that there was no illegal agreement or action for such purpose. That the local authorities, Bayshore Regional and Hazlet, were acting only in accordance with state law and the requirements of the State Department, there having been established a regional system including a Monmouth County overall regional system which was established in 1966. That, in any event, plaintiff is es-topped from bringing the within cause of action by its failure to comply with the conditions for additional construction in accordance with the last permit issued in 1964, and by reason of its continued violations of the regulations of the State Department concerning the treatment of effluent and its discharge.

Plaintiff had also alleged in the third count of its complaint that the Hazlet Township Sewerage Authority did not exercise good business judgment in purchasing the other existing private sewage treatment plant (Raritan Valley) and refusing to purchase plaintiff’s plant and facilities. However, during the trial this claim was dismissed by the court on motion and no longer needs further discussion.

The controlling issue which emerges out of all the testimony and. the contentions made by the respective parties requires first of all a determination as to whether plaintiff is in any way estopped by reason of its conduct from seeking the relief herein sought, as alleged by defendants. The estoppel urged is predicated upon the fact that plaintiff failed to make the necessary repairs to enlarge its treatment plant within the two-year period prescribed by the permit obtained therefor, as heretofore related, and is further predicated on allegations and concessions that the regulations of the State Department have been violated by plaintiff. While it is conceded that no improvements by way of enlargement of the plant were made, as before related, it is the court’s conclusion, finding and determination that under all the circumstances of the case this should not be considered as a bar to the present action. It is obvious from a recital of the facts as determined heretofore that there were negotiations going on, working toward the sale of the plant to the local authority. It seems clear that the local authorities, being mindful of the ramifications of the proposed county regional overall plan, did exert what influence they could to make sure that no additional costs would be imposed by any additions made by plaintiff, the then owner.

I hasten to add, however, that I find no conspiracy or wrongdoing in this regard for which there would be any individual or collective liability5" so as to substantiate a claim for tortious conduct on the part of any of the defendants which would give rise to any cause of action in favor of plaintiff for such action. This is so because they were involved with public funds; they were negotiating to obtain as good a price as they could at this time, which in fact it was their obligation and duty to do. Likewise, plaintiff was fully aware of the total -situation, and under all the circumstances it would have been perhaps foolish on its part to expend the additional sums of money required. It is likewise true that notwithstanding there were violations with respect to the type of diluent being discharged, due at least in part to inadequate treatment caused by defective equipment and an overloading of the plant, nevertheless this situation was well known not only to the local authorities, who, as previously recited, in some instances encouraged further use of the plant even for municipal facilities, but also the State Department, which either expressly approved or at least acquiesced to such action during this interval. Thus, in fairness and in the interest of justice, defendants should not now be able to assert the defense of estoppel and the burden of proof to so establish same has not been met by the defendants.

Proceeding, now, to the basic issues involved, and after consideration of all the testimony and the applicable law, the court comes to a final determination that the order issued on April 19, 1967, revoking the building permit previously issued on August 27, 1964, was a valid and reasonable order and constituted a valid exercise of the police power by the Department on behalf of the State. I further find that it was not arbitrary, discriminatory or capricious in any respect when considered in light of all the facts and circumstances.

As heretofore related and determined, the original permits and ensuing permits obtained from the State were subject to certain conditions which had been accepted and never removed, including the right of revocation, and thus plaintiff itself agreed to such revocation by the acceptance of such permits. The same were revocable or subject to modification or change when, in the judgment of the State Department of Health, such became necessary and required plaintiff company to comply with the rules and regulations promulgated by the Department and authorized by any policies of the Department or by any legislative acts of the State. The effect thereof is that plaintiff accepted voluntarily a determinable franchise to be determined by the judgment of the State Department of Health, now the Department of Environmental Protection. The legislative authority is, of course, con-tamed in N. J. S. A. 58:12-3, and indeed the applications of plaintiff are made pursuant to the provisions of that statute.

This being so, the real inquiry then becomes whether the order in question so authorized and made is a reasonable one, and the burden of proof to show that it is not is on plaintiff. In this connection, it must be observed that there is no dispute that the plant was for a number of years exceeding its authorized capacity, and that permission to expand the plant required the work to be done or contract awarded within a period of two years. It is conceded this was not done, so the order in revoking the permit did so in exact accordance with the terms thereof. Such time limitations have been sustained as being reasonable. See Sun Oil Co. v. Bradley Beach, 136 N. J. L. 307 at 309 (Sup. Ct. 1947), aff’d 137 N. J. L. 658 (E. & A. 1948); also Ramsey Associates, Inc. v. Board of Adjustment, 119 N. J. Super. 131, 132 (App. Div. 1972).

I find that the sewer treatment was inadequate; that the tidal waters over which the State has jurisdiction were receiving a flow of sewage which was improperly treated and which contributed to a serious pollution problem in the tributary and tidal waters under the jurisdiction of the State. In addition, the Legislature of the State, by the State Public Sanitary Assistance Act of 1965, contemplated a regional plan of disposal, and this act was further supplemented by the Monmouth County officials by a contemplated facility to be constructed by the Monmouth County Outfall Authority.

It is suggested by the State that the order is also reasonable under the theory of the common trust property, or so-called public trust theory, as enunciated in the recent case of Neptune City v. Avon-by-the-Sea, 61 N. J. 296 (1972), inasmuch as the effluent was being discharged into what might be termed “public waters” as distinguished from “private waters.” There can be no question that at the time of the issuance of the order in dispute the public policy of the State was to dispose of sewage by regional methods, and it is not for this court to say that such determination was erroneous, arbitrary, unreasonable or capricious. It also clearly appears from the testimony presented by one of the state experts, Delgado, that even if the improvements contemplated had been made, the plant as so improved would not be such a plant as would be permitted to be included in the regional scheme. The plant was described as being what is known as a trickling filter design and would not be able to meet the requirements now presently in existence, and there would still be the problem of pollution in the tidal waters of Plat Creek. I can see nothing unreasonable in the order itself, nor is there any indication whatsoever in the testimony presented that the order was arbitrary, capricious or discriminatory.

In the law, "arbitrary” and "capricious” means having no rational basis. Bicknell v. United States, 422 F. 2d 1055, 1057 (5 Cir. 1970). The terms "arbitrary” and "capricious” embrace a concept which emerges from the due process clauses of the 5th and 14-th Amendments of the United States Constitution and operate to guarantee that acts of government will be grounded on established legal principles. See Canty v. Bd. of Education, City of New Tork, 312 F. Supp. 254, 256 (D. C. S. D. N. Y. 1970). Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached. State v. Johns, 66 Wash. 2d 199, 401 P. 2d 841, 842 (Wash. Sup. Ct. 1965); Tacoma v. Welcker, 65 Wash. 2d 677, 399 P. 2d 330, 335 (Wash. Sup. Ct. 1965); In re West Laramie, 457 P. 2d 498, 502 (Wyo. Sup. Ct. 1969); State v. Bruno, 61 Wash. 2d 461, 378 P. 2d 691, 696 (Wash. Sup. Ct. 1963); Miller v. Tacoma, 61 Wash. 2d 374, 378 P. 2d 464, 474 (Wash. Sup. Ct. 1963); Petition of City of Bellevue, 62 Wash. 2d 458, 383 P. 2d 286, 288 (Wash. Sup. Ct. 1963); Urmston v. North College Hill, 114 Ohio App. 213, 175 N. E. 2d 203, 206 (Ct. of Appeals, Hamilton Co. 1961); Wagoner v. Arlington, 345 S. W. 2d, 759, 763-764 (Tex. Civ. App. 1961); DuPont-Fort Lewis School Dist. #7 v. Bruno, 79 Wash. 2d 736, 489 P. 2d, 171, 174 (Wash. Sup. Ct. 1971). Moreover, the court should not substitute its judgment for that of an administrative or legislative body if there is substantial evidence to support the ruling. Kansas City Southern Ry. Co. v. Louisiana Public Service Comm’n., 254 La. 160, 223 So. 2d 132, 136 (La. Sup. Ct. 1969). Surely, applying these accepted definitions and tests indicates the reasonableness of the Department’s action with respect to the existence of a public interest in the waterways for the common purpose of fishing and other uses.

With reference to the so-called public trust doctrine argued by the State of New Jersey herein, as previously referred to, the Court makes no determination as to the scope and effect of this doctrine or its applicability here. It is unnecessary to do so in view of my previous determinations as to the reasonableness of the order on the grounds and for the reasons heretofore mentioned. It is, however, pertinent to observe that in this advanced age of increasing interest in ecology and the public’s interest in lands and waters under the jurisdiction of the State, that it is a factor which should be taken into consideration, but the extent and scope to which it should be taken into consideration is, I believe, something best left to appellate courts for decision because of the possible ramifications involved.

The remaining question for determination concerns plaintiff’s contention that if the order is upheld by this court, then this court should make a determination that plaintiff is entitled to just compensation since the effect of the order is to constitute a taking of property protected by either the Constitution of the State of New Jersey or the Constitution of the United States. In undertaking such determination, inasmuch as the State of New Jersey is now also a party to tlie suit, and thus all parties in interest are before the court, including the State, and the parties having consented herein to such determination, the court will consider this problem as though it were in the nature of a declaratory judgment even though it might be argued that it is premature. Bd. of Education, Morristown v. Palmer, 46 N. J. 522 (1966).

Factually, the effect of the order upon the facilities of the regional plan being put into effect is to prevent plaintiff from further expanding its treatment plant or using it, inasmuch as the testimony indicates that what in fact is contemplated and will be done is that plaintiff’s treatment plant will bo by-passed. Collective mains owned by plaintiff or owned in conjunction with local sewer authorities and which are available in the area will be used to transport and conduct the sewage involved in the area to facilities of the regional authority or authorities and will be treated by such facilities regionally. To this extent at least, plaintiff’s business will continue. Does this constitute a taking of property for which plaintiff is entitled to be compensated? My determination is that it does not. Parenthetically, it should be noted that the testimony of the State’s expert indicates that throughout the State there are approximately 700 to 800 of such privately owned treatment plants, which will be involved in the same fashion when regionalization eventually takes place pursuant to the overall plans. Some of these plants are such that they will be incorporated into the regional system because they are so constructed and contain adequate facilities or are otherwise capable and satisfactory of conforming or being made to conform. In those instances where the plants are adequate and will bo taken over, testimony indicates that it is proposed (and the State Department has no objection) that they be acquired by local authorities for such purpose. As already indicated, plaintiff’s plant does not meet the requirements now or in the contemplated alteration thereof, and thus it would not be taken over or acquired with the approval of the State Department.

N. J. Const. (1947), Art. I, par. 20 provides “private property shall not be taken for public use without just compensation.” The 5th Amendment of the United States Constitution provides, among other things, “nor shall private property be taken for public use, without just compensation.” The 14th Amendment of the United States Constitution provides that “[no order shall] deprive any person of life, liberty, or property, without due process of law.” The Eminent Domain Act of the State of New Jersey now in effect became effective December 21, 1971 and by its terms seemingly provides for jurisdiction in cases of inverse condemnation. Under section 5 thereof it authorizes the court to compel the exercise of the power of eminent domain where applicable. N. J. S. A. 20 :3 — 1 et seq.. It is conceded by plaintiff that the power of condemnation of defendant agency, Department of Environmental Protection, is limited by statute, although it is asserted that defendant State of New Jersey, the principal of its agent, Department of Environmental Protection, has complete powers of condemnation given by the Constitution of tire State of New Jersey.

What is a taking is often a difficult factual question to determine. It is urged that there are New Jersey cases which permit compensation for nonphysical takings, and plaintiff cites in its brief as one of these cases Bd. of Education, Morristown v. Palmer, 88 N. J. Super. 378 (App. Div. 1965). However, it is to be observed that although the Appellate Division in that case was of the opinion and held that the school board would be entitled to compensation without regard to whether there was an actual physical invasion of the school property arising out of a proposed construction of a highway immediately adjacent to the school property, this holding was reversed by our New Jersey Supreme Court, 46 N. J. 522, 525-526 (1966), whrein the court specifically states that it expressed no opinion on whether compensation should be paid, holding the action was then premature. The other two cases cited, Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285 (E. & A. 1905) and Pennsylvania R. R. Co. v. Angel, 41 N. J. Eq. 316 (E. & A. 1886), are not authority for plaintiffs position the. facts and holdings therein are distinguishable from the instant case. For example, in Passaic v. Paterson Bill Posting Co. there was first a determination that the billboard ordinance there involved had exceeded the police power and so an unlawful confiscation. Not so here.

In the instant case there is no intimation or suggestion that plaintiffs treatment plant is to be taken at all. What is involved is an eventually contemplated abandonment of the plant. It must he remembered that the treatment of sewage is seriously involved with the public interest. As population increases, the interest of the public becomes more affected hour by hour, day by day, and year by year. Methods of. treatment and disposal of necessity change, and even at this time no one can really say what methods will be employed in the future. Thus, it is not only logical but mandatory that the use of waters belonging to the people of the State oí New Jersey used for disposal of sewage must be such that it can be at all times controlled and, where necessary in the public interest and on a reasonable basis, be capable of being revoked. Thus, we come to the vital question of whether or not in the exercise of the police power and owing to the need for a more modern method of treatment, the requirement that plaintiff’s plant bo abandoned, as contrasted to its actually being taken, requires compensation to be paid, particularly when the terms of the permit allowing the use of the plant specifically provide for a revocation thereof when in the judgment of the authorities charged therewith it shall become necessary.

The United States Supreme Court has held, and it is settled law, that a proper exercise of the police power is without the limitations and restrictions of the constitutional provisions applying to the exercise of eminent domain. Chicago, etc., R. Co. v. Illinois, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596 (1905). The landmark case appears to be Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (1887), in which. Justice Harlan, speaking for the court, said:

The power which the states have of prohibiting such use by individuals of trier property as will be prejudicial to the health, the morals, or the safety of the public, is not * * and * *’ * cannot be — burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community, [at 669, 8 S. Ct. at 301]

Likewise, New Jersey courts have held that no right to compensation adheres to a valid exercise of the police power by the state. In Penna.-Reading Seashore Lines v. Bd. Pub. Utility Comm’n., 13 N. J. Super. 540 (App. Div. 1951), aff'd. 8 N. J. 85 (1951), it was held that:

And as all property, whether owned by private persons or by corporations, is held subject to the authority of the State to regulate its use in such manner as not to unnecessarily endanger the lives and personal safety of the people, it is not a condition of the exercise of that authority that the State shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use * * * [Emphasis supplied]

In State v. Mundet Cork Corp., 8 N. J. 359 (1952), cert. den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952), our New Jersey Supreme Court, quoting from Welsh v. Morristown, 98 N. J. L. 630, 634 (Sup. Ct. 1923), aff'd per curiam on opinion below, 99 N. J. L. 528 (E. & A. 1924), held that:

Every citizen holds his property subject to the proper exercise of this power * 3’ * by the Legislature directly * * * It is well settled that laws and regulations * * * relating to the comfort, health, convenience, good order and general welfare of the inhabitants, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner.

A determination of where regulation ends and taking begins is not capable of any set formula or definition. Goldblatt v. Hempstead, 369 U. S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962). Each case must turn on its own set of facts. Berman v. Parker, 348 U. S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). The right of the State to use the police power to protect and advance the public health of its citizens is without dispute, because the preservation of the public health is of necessity a vital element of the police power. Board of Health v. New York Cent. R. R. Co., 4 N. J. 293 (1950). It has also been held in this State that sanitary regulations controlling dumping are Aralid exercises of police power requiring no compensation. Earruso v. Bd. of Health, East Hanover Tp., 120 N. J. L. 463 (1938). To like effect, see Gardner v. Michigan, 199 U. S. 325, 26 S. Ct. 106, 50 L. Ed. 212 (1905). Regulations concerning pollution also fall within the traditional concept of a proper exercise of the police power. Huron Cement Co. v. Detroit, 362 U. S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960). More specifically, the power of the State to regulate the discharge of effluents from sewage plants by means of orders issued under N. J. S. A. 58:12-1, 2, 3 has been recognized. See State Health Dept. v. Passaic Valley Sewerage Com., 100 N. J. Super. 540 (Ch. Div. 1968), aff'd 105 N. J. Super. 565 (App. Div. 1969).

In the instant case, factually, as before stated, the court is dealing not with the expropriation or the taking of private property hut in fact Avith the revocation of a permit or franchise. Reference is made to Acton v. United States, 401 F. 2d 896 (9 Cir. 1968), cert. den. 393 U. S. 1121, 89 S. Ct. 1003, 22 L. Ed. 2d 128 (1968). This case involved valuable uranium exploration permits as to which the appellants had expended substantial time and funds, and it was held that these permits could be xevoked without compensation under a provision contained in the permit providing for revocation when “required by military necessity.” As in the instant ease, the permit was apparently silent as to the right of compensation. In declaring that such a license does not constitute property for Avhich the government will he liable upon condemnation and pass to the licensee, no estate or interest in the lands, the court used the following language:

It is fundamental that wken the United States takes private property for public use the Eifth Amendment requires payment of just compensation. This obligation, however, recognizes only vested property rights, and not the tenuous rights of licenses and permits, even though these at times may have value, [at 899]

In furtherance of its holding the court also made reference to its previous opinion in Osborne v. United States, 145 F. 2d 892 (9 Cir. 1944), and quoted language therefrom as follows :

Numerous instances are to be found where permits issued by a sovereign are highly valuable as between private persons but which may be revoked by the sovereign without the payment of compensation : e. g.t bridge franchises * * *; licenses to erect river and harbor structures * *; permits to erect and maintain telephone and power lines * * *; licenses to occupy, lease, or sell fishing areas, [at 896; citations omitted]

See also Mt. Vernon, Alexandria and Washington Ry. Co. v. United States, 75 Ct. Cl. 704 (1932), cert. den. 287 U. S. 643, 53 S. Ct. 87, 77 L. Ed. 556 (1932).

It follows from what has been here decided that plaintiff’s rights were at all times subject to being revoked by the State by reason of the condition imposed in the permit applied for and accepted by it and in the subsequent permits which were issued from time to time. There is no expropriation or actual taking of plaintiff’s treatment plant — that is, no physical taking. The interest or rights of plaintiff as owner of the treatment plant, so far as the State is concerned and so far as the other defendants in this ease are concerned, is not such interest as requires payment of compensation by reason of having issued the order in question.

It follows also that there is no obligation on the part of the local authorities, defendants herein, to pay any compensation, for any act complained of by plaintiff with respect to its claim for compensation against these defendants was but an act of a public body carrying out the legislative scheme and the regulations of the State Department. No authority has been submitted that any local authority would have to pay compensation by way of condemnation, even if it was authorized to condemn (which is here denied) by reason of the action taken by the State Department of Environmental Protection or the State Board of Health. There does not appear to be any legislative authority for this in any event, nor do the local authorities that were formed appear to have any authority to condemn. Whether they have such authority is not necessary to be determined in view of the conclusions heretofore set forth.

Counsel may present an order in accordance with the findings and conclusions herein reached and in accordance with the determinations of the court made on motion for dismissal as to portions of the case which were granted during the trial. No costs will be allowed as to any of the parties.