author: Simpson, J. C. C.

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF, v. MILKON REALTY, INC., A CORPORATION OF NEW JERSEY, SUCCESSOR TO OAKLAND COTTAGE ESTATES, INC., A CORPORATION OF NEW JERSEY, BY CHANGE OF NAME ON JANUARY 21, 1960; STATE OF NEW JERSEY, BOROUGH OF OAKLAND, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS. STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF, v. THE TOWNSHIP OF SOUTH HACKENSACK, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 28, 1972.

      Mr. William J. McCormack for plaintiff (Mr. George F. Kugler, Jr., Attorney General of Mew Jersey, attorney).

      Mr. Marvin II. Gladstone for defendant Milkon Eealty, Inc., etc. (Messrs. Gladstone, Hart, Kronenberg, Manáis, Rathe £ Shedd, attorneys).

      Mr. Richard L. Rudin for plaintiff (Mr. George F. Kugler, Jr., Attorney General of Mew Jersey, attorney).

      Mr. Ralph W. Chandles-s for defendant South Hackensack Tp. (Messrs. Chandless, Weller £ Kramer, attorneys).
   Simpson, J. C. C.

(temporarily assigned). In these two condemnation cases the defendant-condemnees seek orders fixing the valuation dates for their respective properties. In the Milkon case both the State and the property >wnev have appealed from the amount of the award by the condemnation commissioners, while only the State has so appealed in the South Hackensack case. Jury trials have been demanded in both cases, and under the circumstances to be described, it is essential that the motions be decided prior to the trials de novo.

Both cases involve the taking of lands for highway purposes, and it is undisputed that the State has such power of eminent domain. In Milkon the date of actual physical entry was January 1, 1962, and in South Hackensack it was August 1964. The complaints in condemnation were filed by the State on March 6, 1970 for Milkon and October 26, 1967 for South Hackensack. On March 9, .1970 a declaration of taking was filed in Milkon and $1,300 was deposited with the clerk of the court. Eor South Hackensack the comparable filing date was November 30, 1967, and $250 was deposited. In both cases, therefore, the State had entered and taken physical possession of the respective properties prior to any complaints, declaration of taking, or depositing of estimated valuations in court. Such immediate possession was authorized by N. J. S. A. 27:7-22 prior to the amendment of the statute by L. 1965, c. 79, § 1. Abbott v. Beth Israel Cemetery Ass’n of Woodbridge, 13 N. J. 528, 549-551 (1953) ; State, by State Highway Comm’r v. Seaway, Inc., 46 N. J. 376, 378 (1966). Such physical possession constituted “taking” of the properties, State v. New Jersey Zinc Co., 40 N. J. 560, 572-573 (1963), but were not trespasses, and mandamus would lie to compel further condemnation proceedings. Haycock v. Jannarone, 99 N. J. L. 183, 185 (E. & A. 1923).

At about the same time the complaints were filed, orders to show cause why condemnation commissioners should not be appointed (March 9, 1970 for Milkon and October 26, 1967 for South Hackensack) were obtained, and on May-11, 1970 and December 19, 1967, respectively, orders were signed appointing such commissioners in both cases. Each order required the fixing of compensation and damages “resulting from the taking * * * as of the date of the commencement of this action * * */’ There were no appeals from these orders, and both sides in each case apparently believed the proper valuation dates were the aforesaid dates of filing the complaints. The respective commissioners awarded $8,100 in Milkon and $25,000 in South Hackensack. There had been amendments to the complaints, relative to the properties actually condemned, but these are of no moment as to present issues.

Following the notices of appeal from the awards of the commissioners, but before the trials were calendared, the Eminent Domain Act of 1971 became effective on December 21, 1971. L. 1971, c. 361. Section 4 thereof makes it applicable to all pending actions as well as actions instituted after the effective date. Sections 30, 31 and 32 provide as follows:

30. Date as of which compensation shall he determined.
Just compensation shall be determined as of the date of the earliest of the following events: (a) the date possession of the property being condemned is taken by the condemnor in whole or in part; (b) the date of the commencement of the action; (e) the date on which action is taken by the condemnor which substantially affects the use and enjoyment of the property by the condemnee.
31. Payment of interest.
Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; provided, however, that there shall be excluded from the amount upon which interest shall be calculated, all moneys deposited pursuant to Article V hereof; and provided, further, that interest payable hereunder shall be subject to abatement for rents and profits derived from the property by the condemnee during the period for which interest is payable hereunder, and/or for the fair rental value of such property or any portion thereof occupied by the condemnee during such period.
32. Disputes as to interest.
Unless agreed upon by the parties, the amount of such interest shall be fixed and determined by the court in a summary manner after final determination of compensation, and shall be added to the amount of the award or judgment, as the case may be.

In light of the foregoing, the State contends that under § 30(a) the valuation dates are in 1962 and 1964, since possession was then taken. Despite § 31, the State concedes that “in justice” it should pay interest from such dates. The property owners argue that the dates of filing the complaints must control, for a number of reasons, including some asserted to be of constitutional dimension. Although the property owners stated there would be some hardship and difficulty, if required to establish 1962 and 1964 valuations at this late date, it is clear -that the real reason they seek the later dates is that inflation and a general increase in real property values from 1962 to 1970 more than offset any carrying charges as to the lands (e. g. taxes, insurance, interest, etc.) during such periods.

' The above-cited sections of the Eminent Domain Act of 1971 reflect a legislative solution to problems of determining constitutionally required “just compensation” (N. J. Const. Art. I, par. 20) where the State Commissioner of Transportation (or formerly the State Highway Commissioner) has validly taken possession of lands in advance of paying any compensation or even instituting proceedings to acquire the lands. That legislative clarification of the difficult question of the measuring point for compensation is desirable was long ago recognized by the courts. State, by State Highway Commissioner v. Jones, 27 N. J. 257, 265 (1958) (concurring opinion of Burling, J.). Similarly, as to interest, Milmar Estate v. Fort Lee, 36 N. J. Super. 241, 246-247 (App. Div. 1955), and State, by State Highway Commissioner v. Fisher, 54 N. J. Super. 274, 283 (App. Div. 1959). These and many other problems were studied in depth over the years, as the complete legislative history to the Eminent Domain Act of 1971 reveals. See particularly, Report of Eminent Domain Revision Commission (April 15, 1965).

While the precise question of the validity of § 30 of the Eminent Domain Act of 1971, in the context presented, has not yet been ruled upon by our appellate courts, there can be little doubt that it will be upheld. Although technically dictum, a judicial guidepost appears in State v. Jones, supra:

Where the State Highway Commissioner condemns land for highway purposes he must pay compensation in accordance with constitutional and statutory requirements. See Constitution 1947, Art. I, par. 20; R. S. 20:1-1 et seq., N. J. S. A. The proper measure of compensation is generally said to be the fair market value at the time of the institution of his condemnation proceeding. See R. S. 20:1-9, N. J. S. A.; State by State Highway Com’r v. Cooper, 24 N. J. 261, 268 (1957), certiorari denied 355 U. S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957) : New Jersey Highway Authority v. Wood, 39 N. J. Super. 575, 579 (App. Div. 1956) certification denied 21 N. J. 551 (1956). Where the taking coincides with the institution of the condemnation proceeding, this measure of compensation operates justly insofar as both the condemnor and eondemnee are concerned. However, where there is a taking followed by a change in the condition of tlie property before the institution of the condemnation proceeding, different considerations apply. See North Hudson County R. Co. v. Booraem, 28 N. J. Eq. 450, 455 (E. & A. 1877). Under R. S. 27:7-22, N. J. S. A. the State Highway Commissioner is authorized to enter upon and take property in advance of the institution of his condemnation action (see Abbott v. Beth Israel Cemetery Ass’n of Woodbridge, 13 N. J. 528, 549 (1953)), although the statute would seem to contemplate no significant delay between the taking and the legal proceeding. If, after the taking and before the condemnation aeiion, the property is reduced in value because of alterations by the Commissioner or otherwise, the eondemnee would justly be entitled to the higher valuation as of the date of taking; this is the view which prevails generally throughout the country (3 Nichols, Eminent Domain § 8.5[1] (3d ed. 1950)), and it may well be compelled by the constitutional guaranty of just compensation. On the other hand if, after the taking and before the condemnation action, the land increases in value because of alterations by the Commissioner or otherwise, the eondemnee would not justly be entitled to the higher valuation; as Nichols puts it, any changes in the conditions of the property which take place after the taking “whether they result in an increase or a decrease in the value thereof, cannot affect the amount of the compensation to be paid.” See State by State Highway Com’r v. Gorga, 26 N. J. 113, 115 (1958). [at 261-262]

The legislative scheme of § 30 is clear, viz., to fix the valuation date of ultimately condemned property as of the time any action by the condemnor may reasonably be deemed to thereafter affect the fair market value thereof. Wide latitude is allowed the Legislature in such a determination, as recently noted in Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971), wherein a statute, declaring that for purposes of condemnation the value of land declared blighted should be fixed at no less than the value as of the date of declaration, was upheld. It is ironic, of course, that in most situations previously presented to the courts and the Legislature the condemnee sought earlier valuation dates because the precipitating events reduced the values of the properties, but the principle remains the same. In the present cases, the condemnees attempt to secure later valuation dates, to reflect the results of inflation and a general increase in land values must fail, as changes in value coming within the “or otherwise” rationale of the Jones case hereinabove quoted. Further indication that the values must be determined as of the date of taking (meaning the date of possession vis-a-vis the date of filing the complaint) is found in Jersey City Redevelopment Agency v. Kugler, supra:

In the ordinary case the generally prevailing view is that if, after the taking and before the condemnation action, the property is reduced in value because of alterations by the public agency or otherwise, the owner would be entitled justly to the higher valuation as of the date of the taking. Cf. N. J. S. A. 27:7-22. As this Court suggested in Jones such rule “may well be compelled by the constitutional guaranty of just compensation.” State by State Highway Com’r v. Jones, supra, 27 N. J. at 262. But if, after the taking and before the condemnation action, the property increases in value because of alterations, the owner would not be entitled to the higher valuation, [at 378-379]

Money compensation for condemned property may, in some instances, be imperfect, just as money damages may be an imperfect equivalent for personal injuries in an ordinary accident case. Similarly, in the ordinary contract case, inflation or deflation may decrease or increase the value of the money damages ultimately recovered hy one party against another. Ideally, the money representing “just compensation” for condemned property would he substituted therefor at the moment the condemnee lost the practical use or future value of his property, so that presumably he could immediately protect himself against inflation or reinvest in equivalently valued land to participate in any future general increase in real property values. Practically, this is impossible, but there is no resultant constitutional defect in a statute like § 30 of the Eminent Domain Act of 1971. The condemnee is not helpless, of course, because mandamus is available, as already noted, should the condemnor unreasonably delay in the proceedings to effect just compensation. Additionally, interest may well be available and constitutionally required to compensate for inexcusable delay between the date of actual possession and the date of actual payment. State, by State Highway Com’r v. Seaway, Inc., supra, 46 N. J. at 383; N. J. Highway Authority v. Ellis, 24 N. J. 1 (1957). No question as, to the validity of § 31 of the Eminent Domain Act of 1971 is presented at this time, however, for two reasons. First, the State has conceded that interest is due in the present eases from the earlier date of possession of the lands in question. Second, the question of interest is to be determined, pursuant to § 32, after final determination of compensation.

Finally, there is no merit in the condemnees contentions that the latter valuation dates used in the hearings before the condemnation commissioners are binding upon the parties and the court. No case has been cited or located that gives a party a vested right or interest in a clearly erroneous determination in a civil ease wherein a trial de novo follows an appeal as of right. Even if the condemnees were correct in their assertion that § 30 changes the applicable valuation date retroactively in the middle of the case, there was no proof of bad faith by the State. Instead, it appears that the incorrect valuation date was used before the Commissioners due to error on the part of both the condemnor and condemnees in both cases.

Accordingly, the valuation dates for the appeals are fixed as the dates of actual physical entry, to wit: January 1, 1963 for Milkon, and August 1964 for South Hackensack.


source: Caselaw Access Project

author: Martino, A. J. S. C.

license: Public Domain

text:
    SOUTHERN BURLINGTON COUNTY NAACP ET ALS., PLAINTIFFS, v. TOWNSHIP OF MOUNT LAUREL ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 1, 1972.

      Mr. Carl S. Bisgaier for plaintiffs (Mr. David II. Dugan, III, Director, Camden Eegional Legal Services, Inc., attorney) .

      Mr. John F. Gerry for defendants (Messrs. Wallace, Douglas, Gerry & Mariano, attorneys).
   Martino, A. J. S. C.

Plaintiff’s herein consist of corporate entities and certain individuals, resident and nonresident, who seek declaratory and injunctive relief against a municipality’s zoning ordinance. The right of the corporate entities to bring the action raises a question of qualification to do so, but since certain individual plaintiffs are township residents their right to sue will permit the court to dispose of the issue raised without a determination of the right to sue raised against the other plaintiffs.

The factual situation as it appears as to the resident plaintiffs clearly indicates one of them has moved into a house which was originally used as a summer quarters for a summer camp. The electrical wiring is in an exposed condition and she often gets shocks from the outlets; one space heater by the front door provides inadequate intermittent heat and she must use the gas stove to provide sufficient heat; cold air comes through the windows; drains do not work on occasion and the cesspool backs up into the toilet. She was told that the county board of health and the local building inspector want to be advised when she leaves so that they can “post” the house as unfit for human habitation. She has two children, ages four and two, and receives $282 a month from the Welfare Department. In 1969 the planning board of defendant township recommended blighted area treatment for the area in which she lives.

Another resident with two children and two grandchildren, a widow, lives in an area also recommended for blighted area treatment by the planning board. The dwelling in which she lives was the subject of the first receivership action brought in this State under the new Receivership Law — N. J. S. A. 2A:42-85 et seq. Eor five years she and her family had been living in the house without any indoor plumbing or hot or cold running water. As a result of the court proceedings the house was put in receivership and repairs ordered. As a result her toilet is now functional and she has hot and cold running water. However, insufficient funds are available to repair a leaking roof, plaster continues to fall, the stove is broken, pipes leak in bathroom, the house is infected with vermin. She has attempted to find other quarters in Mount Laurel, but is unable to do so because of her present income. Her total annual income is $6,000.

Another plaintiff has lived with her husband and seven children in defendant township for 20 years. The house is old and crowded and the area is surrounded by industrial uses. She was unable to give the age of the building, although she has lived in it 20 years.

Defendant township stipulated that three other persons who are party plaintiffs were former residents of Mount Laurel but were forced to move to adjoining municipalities. One couple had been living in a converted chicken coop; the cesspool kept backing up and the quarters were infected with vermin. This couple was forced to move in 1970. Another plaintiff was born in defendant township but was forced to move to Camden. The family had lived in a structure in Mount Laurel called “Diamond Apts.” Their quarters were heated by a single kerosene heater; there was little or no hot water; the cesspool backed up and the place was infected with vermin. The family consisted of a husband and wife and four children. Another plaintiff, separated from her husband, was forced to move to Camden because the house she and her four children lived in while a resident of Mount Laurel had ceilings that were cracked and opened. A coal furnace with air vents on the first floor heated the entire house. Water lines continually became frozen; the cesspool kept filling up and backing up.

Testimony has indicated that in defendant municipality the minimum birilding costs of a single-family home is approximately $23,000. This would be the cost of the home completely bare, built on nonunion wages. Testimony further revealed that such a home built at union wage and including minimal amenities would cost 10% to 20% more. This would result in an expense for a single-family home that would not qualify for federal subsidized programs within the reach of the resident plaintiffs herein neglected. Over the years defendant municipality has acted affirmatively to control development and to attract a selective type of growth. These plans were financed with state and federal funds. The township has consistently excluded trailers or mobile homes from its confines. Multi-family uses were generally prohibited as early as 1954 in the local ordinances and the amendments which followed.

While plaintiffs’ testimony referred to clearly indicates the neglect of defendant municipality as to them, the suit by these individuals who appear of record is proposed as a class action for the benefit of many others who, it is alleged and not disputed, suffer from the same substandard type of housing accommodations and reside in defendant municipality.

Under certain factual circumstances our Supreme Court has upheld zoning ordinances which require minimum interior floor space, Lionshead Lake Inc. v. Wayne Tp., 10 N. J. 165 (1952), app. dism. 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953); which limit lot sizes for a single-family unit to five acres, Fischer v. Bedminster Tp., 11 N. J. 194 (1952); which absolutely prohibit the construction of any additional multi-family units, Fanale v. Hasbrouck Heights, 26 N. J. 320 (1958); which prohibit the use of mobile homes on an individual lot, Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959), and which absolutely prohibit all mobile-home parks from a township, Vickers v. Gloucester Tp. Committee, 37 N. J. 232 (1962), cert. den. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963).

Plaintiffs do not quarrel with the above-mentioned cases and, for the purpose of argument herein, are not suggesting that they be overruled. They maintain that, if anything, these cases clearly enumerate judicial standards which mandate that they prevail in the instant ease. Following the Lionshead case, which will be discussed infra, our court in Pierro v. Baxendale, 20 N. J. 17 (1955), aptly noted:

We are aware of the extensive academic discussion following the decisions in the Lionshead and Bedminster eases, supra, and the suggestion that the very broad principles which they embody may intensify dangers of economic segregation * *. In the light of existing population and land conditions within our State these powers may fairly be exercised without in anywise endangering the needs or reasonable expectations of any segments of our people. If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed [at 29; emphasis added]

In defendant township multi-family dwellings are only permitted on a farm for a farmer, a member of the farmer’s family, or persons employed by the farmer, provided the multiple-family dwelling is not closer than 200 feet from the property boundary line.

Minutes, of various township committee meetings expressing the attitudes of the members of the governing body were introduced into evidence. Early in 1968 the mayor, when a discussion arose as to low-income housing, stated it was the intention of the township committee to take care of the people of Mount Laurel Township but not make any area of Mount Laurel a home for the county. A committeeman added that it was the intent of the township to clear out substandard housing in the area and thereby get better citizens. At a later meeting of the township committee in 1969 a variance to permit multi-family dwelling units was rejected because the committee did not see a need for such construction. At a meeting in 1970 a committeeman, during a discussion of homes being run down and worthless, indicated that the policy was to wait until these homes were vacant before the township took action, “because if these people are put out on the streets they do not have another place to go.” At another meeting in September 1970 a township committeeman, when referring to pressure from the Federal and State Governments to encourage low-cost housing, retorted that their most useful function was to evaluate and screen away all but the most beneficial plans. He added, “We must be selective as possible — approving only those applications which are sound in all respects — We can approve only those development plans which will provide direct and substantial benefits to our taxpayers.” (Emphasis added) All through the various admissions permitted to be introduced into evidence, the evidence clearly indicates the attitude of developers who proposed various developments which were not concerned with people of low incomes. Every proposal made leaned in the direction of homes for only those of high income.

A research specialist and planning attorney, who was a consultant to the Division of State and Regional Planning, Department of Community Affairs, and a reporter to the State Land Use Revision Commission charged with revising the State’s enabling legislation regarding planning and zoning'in New Jersey, as well as counsel to Governor Cahill’s Housing Task Eoree Committee, called by defendant municipality as one of its experts, categorically stated that the lack of permissible multi-family provisions in the zoning ordinance was a very good indication that low-income families were not being provided for. While he indicated that Burlington County, as a part of the Camden region, had a possibility of 45,000 multiple-family units under existing ordinances, it must be conceded that under our present enabling statute each municipality now controls its own zoning destiny.

Another expert witness employed by defendant municipality indicated that 66% of the township is vacant land. In the R-l zone, which is the district having the lowest zoning category, viz., 9,375 square feet, there is currently 928 acres of vacant land available for development. This witness, a planner for defendant township for the past 2J^ years, conceded that nothing to his knowledge has been done to re-house the residents living in substandard dwellings in that community. He also conceded that he knew of no standard housing in defendant township available for residents on welfare; that people are living in substandard housing because the municipality will not condemn, inasmuch as onr Relocation Law, 17. N. S. A. 20:4-1 to 22, would require that these residents be otherwise located.

The effect oí this practice would account for the photographic exhibits, which indicate the deplorable facilities now tenanted by residents of the township.

In James v. Valtierra, 402 U. S. 137, 91 S. Ct. 1331, 28 L. Ed. 2d 678 (1971), involving a California constitutional provision which required that all public housing proposals be submitted to a referendum, the court upheld the right to referendum. However, the reason was that the referendum itself did not on its face socially discriminate. In Hunter v. Erickson, 393 U. S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969), the same court invalidated a city charter which required all fair housing ordinances to be submitted to a referendum.

“The States, of course, are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws.” Douglas v. California, 372 U. S. 353, 361, 83 S. Ct. 814, 818, 819, 9 L. Ed. 2d 811 (1963), cited by Justice Marshall, with Justice Brennan and Justice Blackmun concurring, in the dissent in James v. Valtierra, supra. Significantly, the dissent added that “It is far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination ; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect.”

Very little weight should be placed on the majority opinion in James v. Valtierra, supra, as an argument on behalf of defendant municipality, because the court there said, “Furthermore, an examination of California law reveals that persons advocating low-income housing have not been singled out for mandatory referendums while no other group must face that obstacle.”

In Southern Alameda Spanish Speaking Organization v. City of Union, 424 F. 2d 291 (9 Cir. 1970), the court, while only passing on the right to referendum as in James v. Valtierra, supra, significantly stated:

Surely, if the environmental benefits of land use planning are to be enjoyed by a city and the quality of life of its residents is accordingly to be improved, the poor cannot be excluded from enjoyment of the benefits. Given the recognized importance of equal opportunities in housing, it may well be, as matter of law, that it is the responsibility of a city and its planning officials to see that the city’s plan as initiated or as it develops accommodates the needs of its low-income families, who usually — if not always — are members of minority groups, [at 295-296]

In Hobson v. Hansen, 269 F. Supp. 401 (D. C. 1967) aff'd sub nom. Smuck v. Hobson, 132 U. S. App. D. C. 372, 408 F. 2d 175 (1969) (en banc), the trial court stated:

The complaint that analytically no violation of equal protection vests unless the inequalities stem from a deliberately discriminatory plan is simply false. Whatever the law was once, it is a testament to our maturing concept of equality that, with the help of Supreme Court decisions in the last decade, we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous to private rights and the public interest as the perversity of a willful scheme, [at 497]

One of the earlier cases which appeared to follow the philosophy propounded by these plaintiffs was Brookdale Homes, Inc. v. Johnson, 123 N. J. L. 602 (Sup. Ct. 1940), aff’d 126 N. J. L. 516 (E. & A. 1941). In that case an ordinance required a dwelling to be not less than 26 feet above the building foundation. The court held:

* * * [A]n ordinance under the zoning act must bear a reasonable relation to the powers conferred by that act. * * Restrictions imposed pursuant to the zoning act must tend at least in some degree to promote the public good; they must bear a “substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.

It appears that plaintiff there sought the right to build a dwelling which would be only 21 feet high from its foundation. The Court of Errors and Appeals filed a dissenting opinion joined in by six jurists.

Twelve years later Lionshead Lake, Inc. v. Wayne Tp., supra, was decided. That case has been the subject of much academic discussion. “Wayne Township: Zoning for Whom —In Brief Reply,” 67 Harv. L. Rev. 986 (1954) ; Harr, “Zoning for Minimum Standards, The Wayne Township Case,” 66 Harv. L. Rev. 1051 (1953). Chief Justice Vanderbilt concluded that constitutional and statutory changes in the meantime had in effect adopted the reasoning of the dissenters in Brookdale, supra, and rendered inapplicable the majority decision of the Court of Errors and Appeals which had held invalid an ordinance imposing minimum restrictions on the size of dwellings to protect the character of a community and property values therein. However, the opinion did include the statement:

We must bear in mind, finally, that a zoning ordinance is not like the law of the Medes and Persians; variances may be permitted, the zoning ordinance may be amended, and if the ordinance proves unreasonable in operation it may be set aside at any time. [10 N. J. at 172, 173; emphasis added]

A dissenting opinion by the late Justice Oliphant, who was joined by the late Justice Wachenfeld, commented upon the very points raised by plaintiffs in the instant case, i. e.,

Certain well-behaved families will be barred from these communities, not because of any acts they' do or conditions they create, but simply because the income of the family will not permit them to build a house at the cost testified to in this case. They will be relegated to living in the large cities or in multiple-family dwellings even though it be against, what they consider the welfare of their immediate families, [at 182]

Nineteen years later University of Toledo Law Review, vol. I, No. 1 (Winter 1969), at 76, had occasion to state, “Justice Oliphant’s dissent in Lionshead is eloquent testimony to his farsightedness.”

Today there remains only one jurist on our Supreme Court who concurred wth the majority in Lionshead, supra.

[I]n zoning there must be a rational relation between the regulation and the promotion of the general welfare within the reach of the statutorily prescribed areas of action, and that the means invoked be in keeping with the public need. Arbitrary deviation from the general rule is forbidden; and, by the same token, undue discrimination in treatment and classification vitiates the regulation. (Roselle v. Wright, 21 N. J. 400, 410 (1956).]
The thin dividing line between economic segregation and racial or ethnic segregation can be seen in two New Jersey cases. It is generally assumed that it would be unconstitutional for the government by enactment and administration of local zoning ordinances to segregate residential areas by income levels, for example, by restricting an area to those families with incomes over $10,000. or to homes costing $20,000. In Stein v. Long Branch (2 N. J. Misc. 121 (Sup. Ct. 1924)) and Brookdale Homes, Inc. v. Johnson, (supra), (overruled in Lionshead, supra), the zoning ordinances provided that no residences should cost less than a certain amount. The provisions of these ordinances clearly intended to exclude those unable to afford the houses in question. [University of Toledo Law Review, supra, at 75]

Ten years ago Justice Hall, in his dissent in Vickers v. Gloucester Tp. Committee, supra, in a lengthy dissent which deserves close study, summed up the true function of zoning when he said:

In my opinion legitimate use of the zoning power by such municipalities does not encompass the right to erect barricades on their boundaries through exclusion or too tight restriction of uses where the real purpose is to prevent feared disruption with a so-called chosen way of life. Nor does it encompass provisions designed to let in as new residents only certain kinds of people, or those who can afford to leave in favored kinds of housing, or to keep down tax bills of present property owners. When one of the above is the true situation deeper considerations intrinsic in a free society gain the ascendancy and courts must not he hesitant to strike down purely selfish and undemocratic enactments. [37 N. J. at 264, 265; emphasis added]

While a municipality can be said to permit a use not specifically permitted in a zoned area by way of a variance, the Governor’s message delivered March 27, 1972 clearly enunciated the long and tortuous delays in accomplishing any variant to the provisions of our present zoning ordinances, much to the frustration of and damage to the builder and ultimate owner. See “New Horizons in Housing,” A Special Message by William T. Cahill, Governor of New Jersey. The message, ever mindful of the rights of the individual to live, and let live, calls for a rejuvenation of the general welfare concept originally contemplated in zoning and planning. The message and the proposals it suggests may put to rest the problem that exists as to the poor and needy in the sphere of housing. The courts, however, must be ever watchful of any discriminatory acts of local units of government against the rights and privileges of the poor and underprivileged.

It must be conceded that there is a general principle against judicial inquiry into the exercise by a legislative body of its police powers. Courts have always had the power to scrutinize the issue of discrimination. The pleadings, the evidence and the issues framed in this action evoke judicial review beyond that posed by a generalized exercise of police power. The inquiry here was not limited to the terms of the ordinance; the court received evidence of the ordinance’s purpose, its ultimate objective and all the circumstances attending its adoption and enforcement.

The problems which zoning has raised were nurtured by the decision of our United States Supreme Court in Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Those who oppose multi-family dwelling units find solace in the words of the late Justice Sutherland, who described multiple-family dwellings as very often a mere parasite whose presence utterly destroys the residential character of the neighborhood and its desirability as a place of residence. While the Euclid decision may have in effect condoned legislative zoning discretion, it did warn that:

It is not meant by this, however, to exclude the possibility oí cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. [272 U. S. at 390, 47 S. Ct. at 119, 71 L. Ed. at 311]

The Euclid case in the lower court plainly indicated the exclusionary use of zoning that was being perpetrated. That court said:

The plain truth is that the true object of the ordinance in question is to place all property * * ® in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. [297 F. 307, 316 (N. D. Ohio 1924), rev’d 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926)]

Today, when municipalities give reasons for the exclusion of certain uses, although they gloss them with high-meaning phrases, they lack sincerity. It is not low-cost housing which ferments crime; it is the lower economic strata of society which moves in, yet no ordinance would dare to raise that objection to prohibit them and expect to succeed. Local legislative bodies know better than to state that more low-income producing structures will mean a higher tax rate. This is what the courts have abhorred as fiscal zoning. What local governing body would raise an objection to bringing a factory into a neighborhood because it would increase the population of the economically poor? While it may be an argument that it would affect property values, and while it is proper to zone in certain instances against factories, it is improper to build a wall against the poor-income people. In Gomillion v. Lightfoot, 364 U. S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960), the court made it clear that the Constitution nullifies sophisticated as well as simple-minded modes of discrimination.

In Duffcon Concrete Products v. Cresskill, 1 N. J. 509, 513 (1949), the court gave some promise when it said:

What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning, [at 513]

The judiciary cannot be expected to alleviate a condition that definitely calls for legislative action from either the national or state governments. The courts can only meet each specific situation as it is presented, and while one community may have facts which justify court intervention, the relief will not necessarily be the same in all areas unless the factual content justifies intervention, as this court believes in the ease at hand. The Federal Government has left zoning problems to the states, and the states have largely, but not entirely, left them to the local governments. Housing, to be adequate for the poor, must be left primarily in the hands of a governmental body other than a local unit. The judiciary can only expect to give relief on a piecemeal basis, and “legislation” by the courts is often less than satisfactory.

Ever mindful of the admonitions set forth in the Constitutional mandate of the New Jersey Constitution, Art. IV, § VII, par. 11, enjoining liberal construction of provisions in that document and of laws concerning local government, I would parrot the words of Justice Hall in his dissent in Vickers, supra, 37 N. J. at 257, when he said, “Analysis demonstrates that the mandate has no true application in this situation.”

There has been too much conservatism in the definition of the words which refer to one of the purposes of zoning, i. e. “to promote the general welfare.” Some definitions would better apply to private welfare.

Our present State Supreme Court, in a different setting, said:

We specifically hold, as matter of law in the light of public policy and the law of the land, that public or, as here, semi-public housing accommodations to provide safe, sanitary and decent housing, to relieve and replace substandard living conditions or to furnish housing for minority or underprivileged segments of the population outside of ghetto areas is a special reason adequate to meet that requirement of N. J. S. A. 40:55-39(d) and to ground a use variance. [DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428, 442 (1970) ]

The patterns and practice clearly indicate that defendant municipality through its zoning ordinances has exhibited economic discrimination in that the poor have been deprived of adequate housing and the opportunity to secure the construction of subsidized housing, and has used federal, state, county and local finances and resources, solely for the betterment of middle and upper-income persons. The zoning ordinance is, therefore, declared invalid.

Plaintiffs, in seeking declaratory and injunctive relief, argue that even if the zoning ordinance were declared invalid, the injury they suffer will not afford a remedy. They argue there is a desperate need for affirmative municipal action within parameters established by the court.

In Hawkins v. Shaw, 437 F. 2d 1286, 1293 (5 Cir. 1971), the court declared that a municipality cannot discriminate in the use of municipal services and said that a town could be required to submit a plan for the equitable distribution of such services. See also, Crow v. Brown, 332 F. Supp. 382 (N. D. Ga. 1971), aff’d 457 F. 2d 788 (5 Cir. 1972).

This court agrees with plaintiffs and, therefore, orders that defendant municipality shall, upon the entry of a judgment to conform with these findings and conclusions of law, immediately undertake a study to identify:

a. The existing sub-standard dwelling units in the township and the number of individuals and families, by income and size, who would be displaced by an effective code-enforcement program;
b. The housing needs for persons of low and moderate income:
1. Residing in the township;
2. Presently employed by the municipality or in commercial and industrial uses in the township;
3. Expected or projected to be employed by the municipality or in commercial and industrial uses, the development of which can reasonably be anticipated in the township.

Defendant shall, upon completion of the investigation referred to in the preceding paragraph, establish, to the extent possible, an estimated number of both low and moderate income units which should he constructed in the township each year to provide for the needs as identified in the preceding paragraph.

Defendant shall, upon completion of the analysis set forth in the preceding paragraphs, develop a plan of implementation, that is, an affirmative program, to enable and encourage the satisfaction of the needs as previously set forth. That plan shall include an analysis of the ways in which the township can act affirmatively to enable and encourage the satisfaction of the indicated needs and shall include a plan of action which the township has chosen for the purposes of implementing this program. The adopted plan shall encompass the most effective and thorough means by which municipal action can lie utilized to accomplish the goals set forth above.

If for any reason the township shall find that circumstances exist which in any way interfere with or bar the implementation of the plan chosen, it shall set forth in explicit detail:

a. Each and every factor ;
b. The way in which each factor interferes with or bars implementation of the plan;
c. Possible alternative plans or municipal action which temporarily or permanently, wholly or in part, eliminate the indicated factor or factors; and
d. The reason why the alternative plans have not been adopted.

To the extent possible, the aforementioned analysis, studies and plans shall be undertaken with the cooperation and participation of plaintiffs and their representatives.

The aforementioned analyses, studies, development of plans and other action shall be completed within 90 days from the date of 'judgment. The township shall serve copies of the analyses, studies and plans on plaintiffs’ attorney and this court within 90 days. The parties shall appear before this court no later than ten days, or on a date set by this court, after service of said papers for a determination of whether defendants have complied with the order of this court and whether further action is necessary.

The judgment entered in this matter as to the invalidity of the zoning ordinance shall not become effective until this court shall decide that sufficient time has elapsed to enable the municipality to enact new and proper regulations for the municipality. Morris County Land, etc. v. ParsippanyTroy Hills, 40 N. J. 539 (1963).

This court retains jurisdiction until a final order issues requiring implementation of the plan as agreed upon.


author: Per Curiam.

text:
    INDUSTRIAL LESSORS. INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. CITY OF GARFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, IN THE COUNTY OF BERGEN, AND THE BOARD OF ADJUSTMENT OF THE CITY OF GARFIELD, AND THE BUILDING INSPECTOR OF THE CITY OF GARFIELD, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 24, 1972
    Decided May 9, 1972.

      Before Judges Coneord, Matthews and Fritz.

      Mr. Robert K. Hartmann argued the cause for appellant (Messrs. Hartmann & Broolcs, attorneys).

      Mr. John 8. Wolchho argued the cause for respondents Board of Adjustment of City of Garfield, City of Garfield, and The Building Inspector of the City of Garfield (Mr. Ralph W. Chandlers, attorney).
   Per Curiam.

This is an appeal from a decision of the Law Division, Superior Court, sustaining a determination by the building inspector of Garfield, affirmed on appeal by the local board of adjustment, refusing a building permit to plaintiff to reconstruct an industrial building destroyed by fire in 1969. Plaintiff had been duly granted a variance to build the original building in 1962.

The board of adjustment and the Law Division relied upon provisions of the 1960 municipal zoning ordinance which, we assume, without so deciding, prohibit nonconforming buildings (expressly defined as inclusive of variance structures) from being reconstructed after destruction unless they conform with the ordinance in all respects. The reasoning was that since variances may be subjected to conditions by the granting body, the terms of the ordinance just mentioned are to be regarded as generally applicable additional conditions of any grant of variance enforcible against the property owner. We agree with the premise but not with the conclusion thus formulated.

For present purposes, a variance is vastly different from a nonconforming use. The latter is saved by the statute from subsequent prohibitory provisions of the zoning ordinance, but nonconforming uses and structures are disfavored in the law and the total destruction oí a nonconforming building terminates the right to continue the use. See Hay v. Board of Adjustment, Ft. Lee, 37 N. J. Super. 461, 465 (App. Div. 1955) ; N. J. S. A. 40:55-48.

A variance, however, is an official quasi-legislative, quasi-judical determination that the use or structure allowed is not offensive to the ordinance in the broad context of the particular circumstances which, under the statutory criteria specified by N. J. S. A. 40:55-39, have authorized the grant. In essence, the use or structure allowed becomes a conforming use. 2 Rathkopf, The Law of Planning and Zoning (3d ed. 1972), 46-1. Although a variance can perhaps be lost by abandonment, see North Plainfield v. Perone, 54 N. J. Super. 1, 12-13 (App. Div. 1959) certif. den. 29 N. J. 507 (1959) it otherwise partakes to a large degree of the characteristics of a vested right running with the land. 2 Rathkopf, op. cit.

Since the foregoing characteristics of a variance structure or use flow from the intention implicit in the statutory scheme, any impairment thereof by municipal ordinance is invalid as conflicting with the statute. In our judgment the appellant has a clearly implied statutory right to rebuild its structure if essentially duplicative in all respects of that previously in existence pursuant to the variance. The ordinance cannot take it away. Appellant is entitled to the building permit if the application conforms with the foregoing expression, as we assume it does.

Eeversed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HARRY KOCH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1971
    Remanded March 9, 1972
    Resubmitted April 8, 1972
    Decided May 11, 1972.

      Before Judges Conbobd, Matthews and Eeitz.

      Mr. Stanley G. Van Ness, Public Defender, and Mr. Gerald Boswell, Assistant Deputy Public Defender, attorneys for appellant.

      Mr. John S. Kuhlthau, Middlesex County Prosecutor, and Mr. Thomas KapsaTc, Assistant Middlesex County Prosecutor, attorneys for respondent.
   Per Curiam.

See our prior opinion herein. State v. Koch, 118 N. J. Super. 421 (App. Div. 1972). After rendition thereof the United States Supreme Court held, on March 22, 1972, in Loper v. Beto, 405 U. S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972), that the use of uncounselled prior convictions to impeach credibility of a defendant in a criminal trial invalidated a conviction at such trial (absent harmless error beyond a reasonable doubt) and that its determination was as fully retroactive as was the decision in Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The substantive holding accords with our previous opinion; the determination on retroactivity goes beyond it. In any event, the decision confirms the correctness of our disposition of defendant’s post-conviction application.

The remand directed by our earlier opinion has been executed. On sufficient testimony by defendant and representations by the Middlesex County Prosecutor concerning the uninformative state of the South Carolina records, the trial judge has found, as he was compelled to on the record before him, that defendant neither had nor waived legal representation on the occasions of either the 1949 conviction of highway robbery or the 1957 conviction of escape.

The instant conviction of armed robbery is set aside and reversed and the cause is remanded for prompt retrial.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOVINO SOTO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 17, 1972
    Decided May 12, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Joel C. Binslcy, attorney for appellant.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. B. Benjamin Cohen, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

Defendant appeals his conviction on two indictments, one charging him with possession of lottery slips (N. J. S. A. 2A:121-3), and the other charging him with knowingly permitting his grocery store to be used for carrying on a lottery business (N. J. S. A. 2A:121-3(c)). Defendant was sentenced to six months in the Essex County Correction Center and fined $500 on the possession charge. He received a concurrent sentence of six months on the charge of owning a place where a lottery business was conducted.

We find no merit in the argument that the latter charge should have been dismissed because defendant was not the owner of the building. He was admittedly the proprietor of the grocery store and rented the premises where the lottery business was being conducted.

N. J. S. A. 2A:121-3(c) provides:

Any person who:
* * * * * * * * *
e. Being the owner of a Imilding or place where any business of lottery or lottery policy, so-called, is carried on knowingly, by himself or his agent, permits such premises to be so used is guilty of a misdemeanor. (Emphasis added).

Although this provision is not a model of clarity, it is clear that the proscription against using premises for the purpose of a lottery business cannot be construed to be limited to apply only to the owner in fee of a building. The statute uses the term, “owner of a building,” disjunctively with the term, “place.” A tenant, who is the proprietor of a business, can fairly be said to be the “owner” of a place within the meaning of the statute.

The statute should be construed broadly in the light of the criminal activity it was designed to control and in accordance with the clear and long-standing comprehensive policy against unauthorized gambling. See State v. Puryear, 52 N. J. 81, 85 (1968). Any other interpretation of the statute would effectively emasculate it and subvert the legislative intent.

State v. Aiello, 91 N. J. Super. 457 (App. Div. 1966), certif. den. 48 N. J. 138 (1966), cert. den. 388 U. S. 913, 87 S. Ct. 2106, 18 L. Ed. 2d 1351 (1967), is not to the contrary. In that case two co-defendants, Giuliano and Aiello, were convicted under this section of the statute. The record indicated that Aiello was the admitted owner of the premises, while Giuliano owned no interest therein. On these facts the court held that in no sense could Giuliano be said to be the owner of the building. In the case at bar, defendant has a leasehold interest in the building and owns the business conducted therein. Cf. State v. Puryear, supra where the Court indicated that an apartment was a “place” as that term is used in N. J. S. A. 2A:112-3. See also, State v. Rucker, 46 N. J. Super. 162, 169 (App. Div. 1957), certif. den. 25 N. J. 102 (1957), where the court construed N. J. S. A. 2A:121—3(b), a companion section to the one under consideration here.

Defendant also contends that, after defendant had requested an interpreter, the trial judge committed reversible error in expressing doubt, in the presence of the jury, as to defendant’s need for such assistance. We find no substance to this argument. We note that the court, in fact, acceded to defendant’s request for the appointment of an interpreter. Although the remarks would have been better left unsaid, they were hardly of a character to constitute prejudicial error.

Affirmed.


author: Hartman, J. C. C.

text:
    ETHEL MAE WANSER, PLAINTIFF, v. IRVING WANSER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 24, 1972.

      Edward Jasie, appearing for Newark Legal Services Project attorney for plaintiff.
   Hartman, J. C. C.

(temporarily assigned). The wife in tliis default action seeks an absolute divorce from her husband under the recently enacted 18-month separation statute, N. J. S. A. 2A:34-2 (d).

This section, which became effective on September 13, 1971, permits a divorce between spouses who “have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation * * After such period of time the act establishes a presumption that there is no reasonable prospect of reconciliation. The legislative intent here was to establish a no-fault ground for divorce in New Jersey to accord with public policy that “dead marriages should be legally terminated.” See Final Report to the Governor and the Legislature of the Divorce Law Study Commission (May 11, 1970) 73.

The parties were married in Alabama in 1948 and separated in 1958 after having established a matrimonial domicile in New Jersey. Both parties have been bona fide residents of this State ever since.

Plaintiff’s only corroboration of the cause of action comes from a male witness whose testimony, along with plaintiff’s, establishes that they have been committing adultery for the past eight years; that she lives in a home owned and occupied by her paramour; that they intend to marry in the event a divorce is granted and, pointedly, that she and her husband have during those eight years lived in different habitations, separate and apart.

I find this type of corroboration sufficient to warrant the granting of a divorce under the separation ground. It is not inconsistent with the legislative policy. I can thnk of no stronger proof under these circumstances that the marriage between her and her husband is dead. She is now given an opportunity to legitimate the present relationship she has established. Had there been children born of that relationship, such children would become legitimate following a civil or religious marriage. N. J. S. A. 2A:34-20; L. 1971, c. 212, § 7 as amended. We have no problem in this setting with the doctrine of recrimination, which was abolished as a defense by N. J. S. A. 2A:34-7 as enacted under the present statute. See also X v. Y, 103 N. J. Super. 218 (Ch. Div. 1968); C. v. C., 54 N. J. 223 (1969).

Judgment of divorce is granted to plaintiff.


author: Consodine, J. C. C.

text:
    ANTHONY P. DE RIENZO, PLAINTIFF, v. ROSE DE RIENZO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 11, 1972.

      Mr. Anthony T. Colasanti for plaintiff (Mr. Angelo B. Bianchi, attorney).

      Mr. Joseph Klein for defendant (Messrs. Soriano, Ilenlcel and Klein, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Plaintiff sues for divorce on the ground of separation. N. J. S. A. 2A:34-2(d).

Testimony disclosed that the parties have lived since 1965 in the same house. Plaintiff’s bedroom has had locks on both sides of the door and he alone has had the keys.

The statute reads:

Divorce from the bond of matrimony may be adjudged for the following- causes: * * * (d) Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months * * *. [Italics supplied]

The provision in somewhat similar language has been interpreted by many state courts. In most of the statutes the phrase, “in different habitations,” does not appear. The opinions nevertheless consider the phrase as if it were at least the presumed legislative intent. They have a bearing on the interpretation sought here by plaintiff.

See Lillis v. Lillis, 235 Md. 490, 201 A. 2d 794 (Ct. App. 1964) (separate rooms in the same residence occupied intermittently by both is not living separate and apart); Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935 (Sup. Ct. 1957) (where the spouses, owners of a drug store, lived separately in up and downstair apartments and where the husband had a key to the wife’s apartment in which was the only bathroom, the parties were not living separate and apart); Rogers v. Rogers, 258 Ala. 477, 63 So. 2d 807 (Sup. Ct. 1953) (living separate and apart means a complete cessation of all marital duties and relations between husband and wife and their living separate and apart in such a manner that those in the neighborhood may see that they are not living together); Neff v. Neff, 30 Wash. 2d 593, 192 P. 2d 344 (Sup. Ct. 1948) (continued occupation of the same residence barred divorce on the ground of separation) ; McNary v. McNary, 8 Wash. 2d 250, 111 P. 2d 760 (Sup. Ct. 1941) (living separate and apart means in separate residences) ; Dudley v. Dudley, 225 N. C. 83, 33 S. E. 2d 489 (Sup. Ct. 1945) (when husband and wife live in the same house and thus hold themselves out to the community as man and wife there is no separation); Young v. Young, 225 N. C. 340, 34 S. E. 2d 154 (Sup. Ct. 1945) (separation means living apart for the entire period in such a manner that those who come in contact with the spouses may see that they are not living together) ; McDaniel v. McDaniel, 292 Ky. 56, 165 S. W. 2d 966 (Sup. Ct. 1942) (living apart means in separate abodes); Stewart v. Stewart, 45 R. I. 375, 122 A. 778 (Sup. Ct. 1923) (living in separate apartments in the same apartment house, even though owmed by the husband, constituted living separate and apart). See also, Christiansen v. Christiansen, 68 R. I. 438, 28 A. 2d 745 (Sup. Ct. 1942); Hava v. Chavigny, 147 La. 330, 84 So. 892 (Sup. Ct. 1920) (living separate and apart must be known in the community of residence, and the evidence thereof is not to be sought merely from behind the closed doors of the matrimonial domicile).

Contra, see Heckman v. Heckman, 245 A. 2d 550 (Del. Sup. Ct. 1968) (occupying separate bedrooms with the abandonment, by mutual consent, of all other incidents of marriage constituted living separate and apart where the court deemed the marriage could not be saved, the court stating in dictum that other reasons for reaching a similar result on the facts could be “economic necessity, stubbornness, or jockeying for position as to possession of the house and contents"); Hawkins v. Hawkins, 89 U. S. App. D. C. 147, 191 F. 2d 344 (D. C. App. 1951) (where the spouses live in separate and independent parts of their home and live their lives separately, that is living separate and apart because the purpose of the statute is “to permit termination in law of certain marriages which have ceased to exist in fact"), (at 345); Boyce v. Boyce, 80 U. S. App. D. C. 355, 153 F. 2d 229 (D. C. App. 1946) (living in different rooms on different floors of the same house was living separate and apart, the essential thing being separate lives, not separate roofs).

By including the phrase, “in different habitations," the Legislature clearly intended that New Jersey join the majority of states in refusing to grant a divorce on the ground of separation where the parties continued to reside in the same house or apartment, even if in separate bedrooms.

Judgment of dismissal with prejudice on the ground of separation.


author: Feller, J. S. C.

text:
    SHALLCROSS EXPRESS, INC., PLAINTIFF, v. LOCAL 478 TRUCKING AND ALLIED INDUSTRIES PENSION FUND, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 14, 1972.

      Mr. Joseph J. Triarsi for plaintiff (Messrs. Pisano and Triar si, attorneys).

      Mr. Thomas Parsonnet for defendant (Messrs. Parsonnet, Parsonnet & Duggan, attorneys; Mr. E. Barclay Dale, Jr. of the Pennsylvania Bar (Messrs. Morgan, Lewis & Boclcius, Philadelphia, Pa., of counsel).
   Feller, J. S. C.

These are motions and cross-motions for summary judgment.

Plaintiff Shallcross Express, Inc. (Shallcross) has instituted this action to recover from defendant Local 478 Trucking and Allied Industries Pension Fund (Fund) the sum of $12,904.19, alleging that it is entitled to this sum under the principle of unjust enrichment. Shallcross has obtained an order to show cause why judgment should not be entered in this amount and the Pund has filed a motion for summary judgment, also claiming the above amount. Oral arguments have been heard by this court on two occasions, and supplemental briefs have been filed as a result. Consequently, this matter will be decided on a motion and cross-motion for summary judgment.

The facts are not in dispute. Shallcross, a trucking company, has for years been a party to a collective bargaining agreement with Union Local 478, Truck Drivers and Chauffeurs Union, which agreements do not cover all of Shall-cross’ employees, but only those in the recognized bargaining unit. Supervisory personnel, dispatchers and mechanics are expressly excluded from the bargaining unit and are not covered by the bargaining agreement.

Under the terms of the collective bargaining agreement Shallcross is obligated to contribute to a pension fund on behalf of those of its employees in the bargaining unit. Article IV, section 1 of the agreement and declaration of trust requires Shallcross to contribute to the Fund the amount required by the collective bargaining agreement in effect between the union and Shallcross. Article II, section 4 provides for the use of the funds so collected, including payment of retirement benefits, to eligible employees and their beneficiaries. The term “employees” is defined in article I, section % to mean “all persons covered by collective bargaining agreements between the employers and the Truck Drivers and Chauffeurs Union, Local 478, I. B. of T., which require contribution to the pension fund.” The trust agreement is thus expressly limited to employees in the bargaining unit and does not extend to all employees.

In September 1956 Shallcross began to make contributions to the Fund on behalf of Albert Bamberger, who at the time was a truck driver and a member of the bargaining unit. In October 1965 Bamberger ceased being a driver and became a dispatcher. As a dispatcher Bamberger left the bargaining unit, but Shallcross nonetheless continued to make contributions to the Fund with respect to him until April 1970.

In December 1956 Shallcross began making payments to the Fund with respect to George E. Henshaw, Jr., who at the time was employed as a helper and as such was a member of the bargaining unit. In January 1959 Henshaw left the bargaining unit when he became a mechanic, but Slialleross nonetheless continued to make contributions to the Fund for him until April 1970.

In September 1960 Shallcross began making payments to the Fund with respect to Thomas II. Gaffney, who at the time was a driver and a member of the bargaining unit. In January 1963 Gaffney left the bargaining unit when he became a foreman, but Shallcross nonetheless continued to make payments to the Fund on his behalf until April 1970.

In May 1970 the fact that Bamberger, Henshaw and Gaffney were not members of the bargaining unit was brought to the attention of the Fund. Shallcross was thereupon directed not to make any further contributions with respect to these individuals. Shallcross requested a refund of all payments it had ever made with respect to these three individuals, and the Fund declined. Shallcross has now instituted this suit in an attempt to recover all payments made with respect to these employees.

Plaintiff claims that the contributions made in behalf of Bamberger, commencing in December 1956 and concluding in December 1970, amounted to $4,517.08. Plaintiff also contends that contributions made on behalf of Henshaw, commencing in December 1956 and concluding in April 1970, amounted to $4,537.37, and contributions made in behalf Of employee Thomas H. Gaffney, commencing in September 1960 and concluding in April 1970, amounted to $3,849.74.

During the time the contributions were made by plaintiff to defendant, no immediate benefits were conferred upon plaintiff or the three employees. Any and all benefits, if they were deemed to be due and owing by defendant, were to be conferred upon application by the employee and a finding of eligibility by the pension plan upon reaching the proper age, or as otherwise provided in the agreement attached thereto. As stated above, plaintiff’s total contributions on behalf of the employees named were in the amount of $12,904.19.

In 1970 Bamberger filed an application for pension benefits with the Fund. Its board of trustees notified him on or about August 24, 1970 that his application had been denied and that he was not eligible for benefits on the theory that, although a card-carrying member of Local 478, he had had a change in job classification in October 1965; that he was not eligible for pension benefits because on the date of that change he had not as yet reached the required minimum age.

On or about May 1, 1970 Local 478 Union’s executive board determined that Henshaw was working outside of union job classification and that he must take a withdrawal card from the union. On or about May 5, 1970 plaintiff received notification from Milton A. Liss, administrator of the Joint Welfare Fund of Local 478, notifying it not to include Henshaw in its May remittance forms to the Fund; to omit him from all future remittance forms since he was not eligible to participate in the Fund, and that the Fund cannot accept contributions from it.

On or about May 5, 1970 a similar correspondence was received from the Fund regarding the ineligibility of Bamberger and also excluding from eligibility Gaffney, who likewise was a member of Local 478 until on or about May 1, 1971. He was required to take a withdrawal card from the union and declared ineligible to participate or have contributions made on his behalf to the pension plan.

Plaintiff does not contend that it is entitled to a rebate of any contributions made to the welfare plan, but only for those contributions made to the pension plan, inasmuch as the benefits to be derived from the pension plan were benefits in futuro, and consequently the individuals named heretofore had not received any benefits from defendant during the course of their employment with Shallcross or as members of Local 478.

Plaintiff, upon being advised of the ineligibility of Bamberger, Henshaw and Gaffney, ceased making contributions to the pension and welfare plans on their behalf. Sometime thereafter plaintiff made a demand for a refund of the contributions previously made on behalf of the above-named individuals. Plaintiff was advised that no refund would be forthcoming. A similar request was made for a refund of the contributions on or about August 12, 1971 and August 16, 1971. On or about August 31, 1971 defendant again declined to refund the contributions previously made. Plaintiff thereupon instituted this action upon verified complaint and order to show cause why these monies, which plaintiff contends are unjustifiably withheld by defendant, should not be remitted to it.

Section 23(c), (d), (e) and (f) of the agreement provides for certain payments per hour into the Fund for each employee for straight time worked.

Defendant contends that plaintiff is not entitled to a return of the contributions made because the rules and regulations governing the Fund form the basis for the actuarial assumptions which are employed to maintain the fiscal integrity of the Fund. Defendant further contends that one of these regulations requires that if an employee leaves the bargaining unit before becoming eligible for a pension, or before his right vests, all contributions paid on behalf of that employee lapse and remain in the Fund for the benefit of the other beneficiaries of the Fund. Defendant also contends that plaintiff was guilty of fraud and thus has waived its right to the return of the contributions made.

I

As stated above, the term “employees” is defined in article I, section 2, to mean “all persons covered by collective bargaining agreements between the Truck Drivers and Chauffeurs Union, Local 478 I. B. of T. which require contributions to the pension fund.” The trust agreement is thus expressly limited to employees in the bargaining unit and does not extend to all employees.

Article II, section 4(b) provides that the money in the Fund shall be used “to pay or provide for the retirement benefits to eligible Employees and their Beneficiaries in accordance with the terms, provisions and conditions of the Rules and Regulations of the Pension Plan above described.”

Thus, the above two provisions in effect provide that pension contributions shall be made in behalf of employees who are eligible — that is, those employees who are covered by the collective bargaining agreement — and that the Fund should be used to provide for retirement benefits for such “eligible” employees.

Thus, it is evident that when the words “employee or employees” are used in the agreement, it means “eligible employees” as stated above. Section 23(a) of the pension plan provides that the employer agrees to participate in the Fund established for the purpose of accepting contributions from it at periodic intervals for its (eligible) employees in order to provide a pension plan for the (eligible) employees, and, as stated, section 23(c), (d), (e) and (f) of the agreement provides for certain payments per hour into the Fund for each (eligible) employee for straight time worked.

The contribution paid by Shallcross to the Fund on behalf of Bamberger between September 1956 and October 1965 when he ceased being a driver and became a dispatcher, and thus was no longer a member of the bargaining unit, cannot be recovered from the Fund, because these payments were made during the period that Bamberger was an “eligible employee” under the above agreement. Those payments became part of the Fund to be used for pension benefits to eligible employees.

The contributions paid by Shallcross to the Fund on behalf of Henshaw between December 1956 and January 1959 when he ceased being a helper and became a mechanic, and thus was no longer a member of the bargaining unit, cannot be recovered from the Fund because these payments were made during the period that Henshaw was an “eligible employee” under the above agreement. Those payments, too, became part of the Fund to be used for the payment of pension benefits to eligible employees.

Likewise, the contributions made by Shallcross to the Fund on behalf of Gaffney between September 1960 and January 1963 when he ceased being a driver and became a foreman, and thus was no longer a member of the bargaining unit, cannot be recovered from the Fund because these payments were made during the period that Gaffney was an “eligible employee” under the above agreement. Those payments also became part of the Fund to be used for pension payments to eligible employees.

Thus, defendant Fund is entitled to retain the contributions made by plaintiff Shallcross on behalf of the three mentioned employees during the periods set out above when they were “eligible employees” under the terms of the collective bargaining agreement.

This conclusion is in accordance with the provisions of 29 U. S. C. A. § 186(c), which states:

* * * such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities. [Emphasis added]

The payments made during the period that the above three employees were eligible were intended to be used for pensions for eligible employees.

After a thorough study of the collective bargaining agreement, this court is of the opinion that if an employee leaves the bargaining unit before becoming eligible for a pension or before his rights vest, all contributions theretofore paid on behalf of that employee shall lapse and remain in the Fund for the benefit of the beneficiaries of the Fund.

II

It is the opinion of this court, however, that defendant Fund is not entitled to retain the contributions made after the above-mentioned employees became ineligible for pension benefits. Plaintiff Shallcross is entitled to reimbursement for payments made after October 1965 when Bamberger ceased being a driver and became a dispatcher, and thus was no longer a member of the bargaining unit. It is also entitled to reimbursement for payments made after January 1959 when Henshaw ceased being a helper and became a mechanic, and thus was no longer a member of the bargaining unit. And Shallcross is also entitled to reimbursement for payments made after January 1963 when Gaffney ceased being a driver and became a foreman, and thus was no longer a member of the bargaining unit.

When the status of the above employees was changed and they were no longer covered by the terms of the collective bargaining agreement from the dates of these changes, they were in the same position, from the date of the change, as employees who were never eligible and were never covered by a collective bargaining agreement.

In Moglia v. Geoghegan, 403 F. 2d 110 (2 Cir. 1968), which affirmed the decision of the trial court, 267 F. Supp. 641 (D. Ct. 1967), a widow sought a declaratory judgment of entitlement to pension payments from a trust fund created from contributions made by the employer for many years. The court held that where the employer and union had never executed a collective bargaining agreement, nor had the employer ever executed a written trust agreement for union’s pension fund, payment by the trustees to the employee’s widow of pension benefits was prohibited under the provisions of Labor Management Relations Act which conditioned membership in the fund on a collective bargaining agreement between employer and union.

The court further stated that the only employer contributions which may be accepted by trustees of a legally established union pension fund are those by employers who have written agreement with the union. Labor Management Relations Act of 1947, §§ 302, 302(c)(5)(B) as amended; 29 U. S. C. A. §§ 186, 186(c)(5)(B).

It should be noted that in view of the fact that no agreement was ever executed in the above case, all of the employer’s (Elmhurst’s) payments were refunded to Elmhurst. However, Elmhurst refused to accept the refund pending termination of the litigation over the pension payments. The court further stated:

For some reason, the Fund does not investigate pension eligibility until after an application for pension benefits has been filed, and, after Moglia applied, an investigation of Elmhurst’s status with the Fund revealed that Elmhurst had never entered into a collective bargaining agreement or a pension trust with the Local although the Local had often requested it to do so. [403 F. 2d at 114]

The court also said (at 118) that it would be illegal for the trustees to retain the contributions of Elmhurst or to pay the benefits to the appellant.

Thus, it is evident in the present case that just as it would be illegal for the Fund to pay benefits to the three employees, so would it be illegal for the Fund to retain the contributions made by Shallcross after the three employees became ineligible.

In Moglia, supra, at 119, fn. 7, the court said:

The Trustees of this Trust Fund have made a practice of accepting employer contributions without checking the Local records to ascertain whether or not the contributing employer has a written agreement with the Local detailing the basis upon which employer payments are to be made into the Fund. Instead of cheeking records when the contributions are received, as Section 302 requires, the Trustees have waited until an application for a pension is made by an employee of a contributing employer and then have checked to see if the employer’s contributions and the Trustees’ acceptance of the contributions conformed with both the Section 302 requirements and the provisions of the trust agreement. If the contributions and acceptance of the contributions were in violation of Section 302 or the trust agreement or both, then the innocent employee’s pension request is denied. This practice has caused needless hardship in this ease and could cause hardship in other cases involving innocent employees.

There is no provision in the agreement between the parties which provides that if an employee leaves the bargaining unit before becoming eligible for a pension, all contributions thereafter made in behalf of that employee after he became ineligible shall lapse and remain in the Fund for the benefit of the other beneficiaries of the Fund.

After the Fund determined that the above three employees were ineligible, it notified Shallcross to discontinue the payments to the Fund on their behalf. To refuse, on the one hand, to accept contributions after they became ineligible, and to retain contributions made after they became ineligible on the other, seems to be a policy which has an element of inconsistency. Shalleross continued to make payments for the throe subsequently ineligible employees. These payments were made for those not covered by that agreement, and the legal effect is that since these contributions were made for subsequently ineligible employees, there was no agreement as to them. Accordingly, the Fund is not entitled to retain them because they were made after the employees left the bargaining unit. See Moglia, supra.

Ill

The Fund contends that Shalleross was guilty of fraud in knowingly making these pajunents after the employees became ineligible — knowing that the employees were not eligible — with the intent to secure pension bene fils for them. The Fund has submitted an affidavit to this effect, but its allegations have been denied by an affidavit submitted in behalf of Shalleross.

Assuming, arguendo, that the payments by Shalleross were made for the purpose of misrepresentation, it is difficult to see how the Fund (a) was deceived thereby, or (b) suffered damages as a result.

(xl) As noted, in Moglia contributions were made by the employer who had not executed a collective bargaining agreement, in order to procure benefits for his employees. When the employees were subsequently determined to be ineligible, the question of these improper payments was raised.

The Moglia trial court hold that:

* * * such ax’gument acknowledges that in accepting the payments from “Elmhurst” for the past 13 years with knowledge, if not actual, certainly imputed, the Trustees were also engaged in violating the statute because acceptance of the moneys by the representative of the employees from the employer is what is literally prohibited by the statute, * * *. [267 F. Supp. at 647]

The court went further:

The motives and purposes of “Elmhurst” and of the Trustees are immaterial. The statute is not limited to conscious wrongdoing. It condemns, outside of the stated exceptions, any and all gifts, no matter how trifling and innocuous; no matter what the motive, and it might be one of pure friendship or generosity; * * *. [at 648]

Additionally, it would seem that the obligation is upon the trustees of a fund, who are charged with the responsibility of collecting contributions and administering the trusts, to determine prior to the acceptance of any contributions that they were made on behalf of employees who are eligible. Their failure to do so is conduct to which knowledge of all the circumstances must be imputed. The Appellate court, in commenting on defendant’s conduct in Moglia, indicated that this lackadaisical conduct should be discontinued, as explained above staling (403 F. 2d at 119) that the trustees should check the records when the contributions are received, as section 302 requires, instead of waiting for an application for a pension to be made by an employee of the contributing employer.

In Branch v. White, 99 N. J. Super. 295 (App. Div. 1968), the court discussed 'the extent of a trustee’s duties, stating:

The extent of the duties of a trustee depends primarily upon the terms of the trust. Where there is no provision, express or implied, in the terms of the trust, the duties of a trustee are determined by principles and rules which have been evolved by courts of equity for the governing of the conduct of trustees. 2 Scott Trusts (3d ed. 1967), § 164, p. 1254.
* * * Trustees are under a duty to the beneficiaries to administer the trusts solely in the interest of the beneficiaries. Restatement, Trust 2d, § 170, p. 364. [at 306]

Trustees have a duty to notify beneficiaries of the existence of the trust and that they are undertaking to act as trustees. See Lipic v. Wheeler, 362 Mo. 499, 242 S. W. 2d 43-48 (Sup. Ct. 1931). They are required to make full disclosure oí all facts within their knowledge which are material for beneficiaries to know for the protection of their interests. In re Dryden’s Estate, 155 Neb. 552, 52 N. W. 2d 737, 746 (Sup. Ct. 1952); Mayfield v. First National Bank of Chattanooga, Tennessee, 137 F. 2d 1013, 1018 (6 Cir. 1943); Zottarelli v. Pacific States S. & L. Ass’n, 94 Cal. App. 2d 480, 211 P. 2d 23, 28 (D. Ct. App. 1949); see comment (D) to Subsection 173, Restatement, Trust 2d, at 378-379; see, generally, Bogert on Trust and Trustees (2d ed. 1952), § 961, and 2 Scott on Trusts (3d ed. 1967), § 164.

The court in Branch concluded:

Thus, in the instant case, while the trust agreement contained no specific direction to the trustees to notify employees of the requirements of the pension plan, it is our conclusion that defendants had an affirmative obligation to inform all employees of the conditions for participation in the plan ® * *. As above stated, they were under a duty to fully inform the beneficiaries of the trust of all facts relating to the subject matter of the trust which were essential for the protection of the beneficiaries’ interest. [99 N. J. Super. at 307]

The obligation and burden seem to be upon the trustees of a fund at the time they accept contributions to assure themselves that the contributions are made on behalf of eligible employees. Once having accepted the funds without having made this determination, they cannot thereafter allege that they have been defrauded into accepting the contributions because the ineligibility requirements had not been discovered at an earlier time.

Defendant has pointed out that in the remittance reports which Shalleross’ agent, Allison, submitted quarterly he was to list the roster of employees who were in the collective bargaining unit represented by Local 478, and that the three employees were listed regularly after they became ineligible. However, the trial court in Moglia seemed to dispose of this problem when it stated in part as follows:

* * * how in the face of the detailed reports required to be filed by a contributing employer specifying name, date, salary, of the audits required of an employer’s books and pay-roll records—which it appears here they did conduct on a spot-cheek basis—they could go on for these many years not knowing that ‘Elmhurst’ was not covered by a collective bargaining agreement, when all the time the Union was allegedly making unsuccessful attempts in this direction, is really beyond our understanding. ® * * [267 F. Supp. at 648]

Furthermore, there was no fraud in Bamberger’s application for a pension in which he listed his job classification as a “dispatcher,” which classification made him ineligible for a pension.

Finally, in Employing Plasterers’ Ass’n, etc. v. Journeymen, etc., 279 F. 2d 92, 99, 100 (7 Cir. 1960), the court stated, in effect, that the right of the association to bring the suit was not impaired by its knowledge and participation in the alleged statutory illegalities. Any party having a right to sue thereunder would almost certainly have participated in the alleged violations of section 302 — employers by the making of outlawed payments, and unions by outlawed acceptance.

(B) Defendant Fund has not suffered any damages as a result of any alleged misrepresentation by plaintiff. In fact, it has been enriched by the contributions made after the employees were declared ineligible, by payments to which it was not entitled under the collective bargaining agreement.

Article IY, section l(n) of the trust agreement, in setting out the general powers and duties of trustees, provides as follows:

(n) Power to determine the eligibility requirement for benefits and to adopt the Rules and Regulations of the Pension Plan in such manner and by such means as the Trustees in their sole discretion determine without undue depletion or excessive accumulation * * *. [Emphasis added]

To retain payments to which the Fund was not entitled under the terms of the collective bargaining agreement would seem to amount to “excessive accumulation” under the terms of the above provision. Under no circumstances can this be considered as damages.

Both Shallcross and the Fund claim the full amount of the contributions made, amounting to $12,904.19. For the reasons stated above, this court has denied these claims and has directed the Fund to retain the contributions made while the three employees were eligible, and has directed plaintiff to recover the contributions made after they became ineligible. However, it is difficult to determine the exact amounts at this time.

Summary judgment will therefore be entered in favor of defendant Fund — in one lump sum — for contributions made by plaintiff Shallcross on behalf of Bamberger between September 1956 and October 1965 ; for contributions made in behalf of Henshaw between December 1956 and January 1959, and contributions made on behalf of Gaffney between September 1960 and January 1963, without interest and costs.

Summary judgment will be entered in favor of plaintiff Shallcross — in one lump sum — for all contributions made in behalf of Bamberger after October 1965; for contributions made on behalf of Henshaw after January 1959, and for contributions made on behalf of Gaffney after January 1963, without interest and costs.

Counsel will agree on the exact amounts and submit a consent judgment.