author: Feller, J. S. C.

text:
    STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER [NOW STATE DEPARTMENT OF TRANSPORTATION], PLAINTIFF, v. BOARD OF EDUCATION OF THE CITY OF ELIZABETH, IN THE COUNTY OF UNION, A BODY CORPORATE OF NEW JERSEY; CITY OF ELIZABETH, IN THE COUNTY OF UNION, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 24, 1971.

      Mr. Peter L. Hughes, III, for plaintiff {Mr. George F. Kugler, Jr., Attorney General, attorney).

      Mr. Raymond H. O’Brien for defendant Board of Education of the City of Elizabeth, et al.

   Feller, J. S. C.

This is an appeal from an award of $3,700 by the condemnation commissioners on December 19, 1967. By stipulating this case was tried by the court without a jury.

There is no question about the fact that the State had the right to condemn under the terms of Art. I, par. 20, of the 1947 N. J. Constitution.

Plaintiff, the State of New Jersey, by the State Highway Commissioner (now the State Department of Transportation, hereinafter referred to as the State), contends that in the planning of Interstate Route 278 it has acquired a portion of property owned by defendant Board of Education of the City of Elizabeth (hereinafter referred to as the Board), located at the northeast corner of Richmond Street and Cole Place in the City of Elizabeth. Located on the tract is William P. Halloran Elementary School No. 22.

The parcel acquired by the State is a triangular-shaped parcel at the intersection of the streets aforesaid. This propperty has a dimension of 70 feet on Richmond Street and 120 feet on Cole Place, containing 2,034 square feet. It also acquired a slope easement extending 55 feet on Cole Place and 158 feet on Clifton Street.

The State further contends that after this taking there remains to the Board 158,966 square feet and all the improvements and that the highest and best use for the subject property is its present use as a public school and playground.

The Board contends that it is the owner and operator of the tract on which is located the said William E. Halloran Elementary School, originally located on Cole Place in the City of Elizabeth. It further contends that from its inception in 1951 the school was designed for the education of pupils from kindergarten through the sixth grade, involving children whose ages run from 4 years, 9 months to approximately 12 years.

Under its right of eminent domain the State, beginning in the summer of 1965, proceeded to take a portion of the Board’s school property, as well as other property owned by others in the area.

Defendant contends that plaintiff so conducted its construction work and subsequent realignment of the roadway in carrying out the planning of Interstate Route 278 that it isolated defendant’s school property on a virtual peninsula surrounded on three sides by highways and/or highway access roads.

Defendant argues that this taking of a portion of its property and the abutting roadways has interfered with the efficiency of the remaining property as an elementary school. Defendant contends that this has caused (a) noxious fumes and serious problems of air pollution; (b) extreme noise from surrounding traffic which will so interfere with the teaching process and oral control of pupils within the school building as to nullify any effective education program; (c) traffic noises that will hinder and render ineffective the outdoor physical education program of the school and create a serious safety problem to pupils using the outdoor play area which is close to the highway termed “Alternate Route No. 1-9,” and (d) extreme danger to pupils between their homes and the school.

Defendant also contends that because of the cumulative effect of the above, the beneficial use of the remaining land and buildings for educational purposes has been impaired or destroyed and that this amounts to a taking of its property. It further claims damages for the expense of fencing the property and the expense of “busing” for the safety of the children.

The condemnation commissioners considered only the value of that portion of defendant’s land actually taken by plaintiff. They fixed a value of $3,700 on the parcel.

At the trial it was stipulated that as to the issue of damages, if plaintiff’s contentions were accepted, the award would be that of the commissioners; otherwise the court might accept all or part of defendant’s claim of damages.

I

Defendant Board contends that the cumulative effect of the taking on its remaining lands and building, as stated supra, amounts to a taking of said remaining land and buildings. This court disagrees with this contention. There was no physical invasion by the State of the remaining lands; consequently there was no taking under the laws of this State.

In Board of Education, Morristown v. Palmer, 88 N. J. Super. 378, 390 (App. Div. 1965), in which plaintiff requested that the court order the State to condemn the school property, the court reviewed very thoroughly a situation similar to the one under consideration. The court said that the damage to plaintiff’s school property, to the joint of total or substantial destruction of its beneficial use as a school facility, would (assuming plaintiff could prove the allegations made in the complaint and supporting affidavits) be different in kind from the damage suffered by other property owners in the area. Cf. Richards v. Washington Terminal Co., 233 U. S. 546, 34 S. Ct. 654, 58 L. Ed. 1088 (1914). The court stated that if plaintiff was correct in its assertion, it would be faced with the dilemma of remaining where it was and carrying on as best it could at the risk of the children’s lives and the certainty of substandard education, or removing the entire school to another location.

The court then recited the allegations of the complaint which, in substance, were as follows: extreme danger to pupils between their homes and the school, whether on foot or on bicycles; noxious fumes and serious problems of air pollution; extreme noise from surrounding traffic which would interfere with the teaching process and oral control of the pupils within the school building so as to nullify any effectual educational program; a serious safety problem to pupils using the outdoor play area, and traffic noises that would hinder and render ineffective the school’s outdoor physical education program because verbal instruction would be limited to three to five feet when trucks are using the highway.

Plaintiff, in Morristown, claimed that because of the cumulative effect of these limitations, hazards and interferences, the beneficial use of the school lands would be destroyed, and this in effect amounted to a taking of the property itself.

The Appellate Division remanded the ease to the trial court for a hearing on the merits. However, on appeal the Supreme Court, 46 N. J. 522 (1966), held that the briefs and oral arguments submitted, as well as an additional drawing of the project as presently planned in the George Washington School area (which was not presented to the Appellate Division) revealed that “there will be no physical invasion of the school premises, and (a) the school will not be encircled by the highway or the access roads or ramps.” The court further stated that a study of the entire record gave rise to the inescapable conclusion that at the present time the issue sought to be presented by the board of education was purely hypothetical. The court said that the effect on the school, as a school, if any, was speculative and would continue to be so until the construction work was completed and sufficient time had elapsed to permit an informed judgment to be made as to whether any damage had been suffered by the board in the constitutional sense of a taking. The court then stated that the action was premature.

In the present ease there was no taking of the 158,966 square feet remaining to the Board after the original taking of 2, 034 square feet. There was no physical invasion of this remaining tract and there was no evidence that this property was encircled by the highway or the access roads and ramps.

However, in Morristown, the Supreme Court did not rule out the question that plaintiff’s allegations (set out above) would not be considered as elements of damages in a subsequent suit. Therefore, in the present case it will be necessary to consider defendant’s contentions that the remaining land and building have been damaged as a result of the partial taking by the State. The construction work is completed, or substantially so, and sufficient time has elapsed to permit an informed judgment to be made as to whether any damages have been suffered by the Board with reference to the remaining tract as a result of the partial taking by the State.

II

In the past it has been customary to try to locate schools in quiet neighborhoods. However, in the larger municipalities at the present time, trucks, “hot rods,” motorcycles, interstate highways, jet aircraft and industry have often brought sound pollution to a school. The question then arises: In these modern times, how much of an increase in sound can be tolerated in the classroom before steps must be taken to alter the structure of the school in such a manner that the noise level is abated on the inside? If this is the only feasible course, a second question presents itself: Who is to pay for these alterations?

Defendant contends, among other things, that because of the cumulative effect of the allegations set out supra, the beneficial use of the remaining lands and building for educational purposes has been impaired. If plaintiff is able to prove this, then it would be entitled to damages to the remainder of said property. See Board of Education, Morristown v. Palmer, supra.

In a proper case, such as a taking of institutional property for highway purposes, such as realty on which a church or school is situated, the court would have no hesitation in considering the detrimental effect of increased highway noise on the remaining property, since this is a factor which a prudent investor would consider in evaluating the economic worth of the property. Dennison v. State, 48 Misc. 2d 778, 265 N. Y. S. 2d 671 (Ct. Cl. 1965). A landowner has a right to be free from unreasonable interference caused by noise even though the noise vector may come from some direction other than perpendicular. Thornburg v. Port of Portland, 233 Or. 178, 376 P. 2d 100 (Sup. Ct. 1962). See also Dean v. State Road Department, 165 So. 2d 257 (Fla. D. Ct. 1964).

In addition to pollution by sound, pollution of the air by gases and smoke is considered “matter,” just as solids or liquids. If they are emitted into the air and allowed to pass over remaining land so as to deprive the owner of the beneficial use of the same, it may be an element of damage if it is the result of a taking. This applies to extreme cases of pollution of air by smoke, noxious odors and gases. See 2 Nichols, Eminent Domain (3d ed.), §§ 6.31 and 6.31-1(1). See also Cogswell v. New York, etc, R. R. Co., 103 N. Y. 10, 8 N. E. 537 (Ct. App. 1886).

A distinction must be made, however, between damages to a remainder area when part of a tract is physically appropriated, and damages to a tract no part of which is physically appropriated. In the former case it matters not that the injury is suffered in common with the general public. The sole test is whether the damage complained of is directly attributable to the taking. 2A Nichols, op. cit., § 6.4432(2). See also Mississippi State Highway Comm’n v. Colonial Inn, Inc., 246 Miss. 422, 149 So. 2d 851 (Sup. Ct. 1963). The proximate effect of the taking is also to be considered in ascertaining the value of the remaining land. Ridgewood v. Sreel Investment Corp., 28 N. J. 121 (1958).

However, it is evident from a review of the record that the proximate effect of the damages claimed by plaintiff was not caused by the taking of the 2,034 square feet —■ only. The use of this particular parcel by the State does not by itself generate and cause the serious problem of noise and air pollution claimed by defendant, but the use of the parcel, together with the use of other parcels of land in the area owned by others, does have the cumulative effect of causing this problem. The extreme sound and air pollution complained of by plaintiff is caused by traffic on the highway and all the access roads and ramps which are part of the construction of Eoute 278 in the vicinity of the school. The taking of defendant’s property and the taking of property owned by others would not have been necessary if the State were not involved in the planning and construction of Eoute 278 — and plaintiff in his contentions states that the State acquired this portion of defendant’s property in the planning of that route.

An examination of exhibits P-2, P-3, D-2 and D-3 reveals the planning and construction of the various highways, roads and ramps that are necessarily connected with the construction of Interstate Eoute 278. It appears that the partial taking of defendant’s property was part of the unitary single use — namely, Eoute 278.

Where part of an owner’s land is taken for a public improvement such as this, and the part taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property due to such public improvement, even though portions of the public improvement are located on land taken from surrounding owners. The determination of whether the part taken constitutes an integral and inseparable part of the whole improvement ordinarily is a question for the trier of the facts. City of Crookston v. Erickson, 244 Minn. 321, 69 N. W. 2d 909 (Sup. Ct. 1955); Andrews v. Cox, 129 Conn. 475, 29 A. 2d 587 (Sup. Ct. Err. 1942).

The court in Croohston, in discussing this principle, stated :

* * * the owner of the remaining area is not ordinarily entitled to recover for damage caused his remaining land by the taker's use of property acquired from adjoining land owners even though his and all property taken from others is used to further the same project.
* * * * * * * *

However simple this general rule appears on the printed page, its application to specific fact situations presents grave problems. It has been characterized by one commentator on the subject as “an attempt to separate the inseparables.” 1 Orget, Valuation under Eminent Domain (2 ed.), § 56, p. 263. [69 N. W. 2d at 913]

The court then stated that an examination of the cases applying the rule which apportioned the injury to the remainder area between that caused by the use of land taken from the owner of the remainder tract and that caused by the use of land taken from others, failed to dissuade it from the view that such apportionment can seldom be realistically made.

Eurthermore, in Andrews, supra, the court stated:

“* * * Where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the effect of the whole improvement is properly to be considered in estimating the depreciation in value of the remaining land. * * *

As the court said in Croohston, supra, “The determination of whether the part taken constitutes an integral and inseparable part of the whole improvement ordinarily is a question for the trier of the fact.” As the trier of the facts, it is the opinion of this court — after reviewing the testimony and exhibits — that the part taken from defendant Board does constitute an integral and inseparable part of the whole improvement; that it was part of the unitary single use, namely, Interstate Koute 278.

Ill

When a part of lands is taken by proceedings in eminent domain, the owner of the land is entitled to the value of the land taken and damages to the remaining land resulting from such taking. Braidburn Realty Co. v. East Orange, 107 N. J. L. 291 (E. & A. 1930). In other words, where only a part of an owner’s land is taken, as in this case, he. is entitled to be compensated not only for the value of the land taken but also for any diminution in the value of the remaining land which may be attributed to the taking. Ridgewood v. Sreel Investment Corp., supra, 28 N. J. 121.

In State by Commissioner of Transportation v. Birch, 115 N. J. Super. 457 (App. Div. 1971), the court said:

Defendant was entitled to just compensation. N. J. Const. (1947), Art. I, par. 1. In general, bad the whole of her lands been taken, her damages would have amounted to the fair market value of the property as of the date of the taking, determined by what would be agreeable between a willing seller and a willing buyer, neither being under any compulsion. State v. Speare, 86 N. J. Super. 565, 572 (App. Div. 1965), certif. den. 45 N. J. 589 (1965). Where, as here, there was only a partial taking, the measure of damages was the difference between the fair market value, as above defined, of the whole property before the taking and the fair market value of the remainder after the taking. Port of W. Y. Authority v. Howell, 59 N. J. Super. 343, 348 (Law Div. 1960), aff’d 68 N. J. Super. 559 (App. Div. 1961), certif. den. 36 N. J. 144 (1961). The proximate effect of the taking was also to be taken into consideration in ascertaining the value of the remaining land. Ridgewood v. Sreel Investment Corp., 28 N. J. 121 (1958); State v. Speare, supra, 86 N. J. Super. at 573. Since the denial of access to the freeway resulted in the greater part of defendant’s property being landlocked, the cost of ameliorating or curing that condition was an important factor to be considered in arriving at its fair market value, [at 462-463]

However, as a practical matter it is not always possible to assess damages to the remaining lands after a partial taking according to fair market value. When, because of its unusual character, property has no market value in the ordinary accepted sense of the term, resort may be had in condemnation actions to other means to determine compensation due the owner for his loss. School houses, churches, court houses and the like are special purpose properties not ordinarily bandied about in the market place, and something other than market value must be employed in ascertaining their worth in condemnation actions. City of Wichila v. Unified School District No. 259, 201 Kan. 110, 439 P. 2d 162 (Sup. Ct. 1968).

Where property already devoted to a public use by one agency of government is partially taken in condemnation by another agency for some unrelated public purpose, the rule is that just compensation should be paid for damage to the remainder which will put it in as good a position as if there were not partial taking, City of Wichita, supra; Mayor, etc., of Baltimore v. United States, 147 F. 2d 786 (4 Cir. 1945), in order to restore the public agency to its prior state of efficiency in discharging its public functions. This is especially true (as in the present case) where defendant .Board is under a legal obligation to educate children and the substitute or replacement facility must be factually necessary. See N. J. Constitution 1947, Art. I, par. 20. Therefore, under such circumstances damages proved are not to be diminished by deductions for depreciation and obsolescence.

The true test is whether any damages awarded as a result of property taken in eminent domain proceedings will restore the overall capacity of the system to the same state of readiness and utility as it possessed prior to the taking. See City of Wichita, supra. In the present case, before the partial taking the Halloran School was adequately performing its function as a place of learning, without suggestion of debility, regardless of when it was constructed. Also in the present ease as well as in other cases, when school property is condemned it is not possible to determine fair market value because there are no comparable sales. Nor is this type of property income-producing, so that in law and in fact there is no market value for the facility or the school.

The damage where school property is involved must be directed to the restoration of a utility rather than to a mere dollar-and-cents value. In some states, in the absence of a constitutional or statutory provision, the market value principle is the only method of determining compensation, and so compensatory damages in condemnation cases are not permitted. Masheter v. Cleveland Board of Education, 17 Ohio St. 2d 27, 244 N. E. 2d 745 (Sup. Ct. 1969). However, the New Jersey statute, N. J. 8. A. 20 :l-9, permits the award of damages in such cases, and our courts have held that such awards are permissible under certain circumstances.

In Housing Authority of Clementon v. Myers, 115 N. J. Super. 467, 477, 478 (App. Div. 1971), the court stated that the legislative and constitutional mandates center around the requirement of “just compensation.” The court further said that the ascertainment of what is just compensation is a judicial function, United, States v. New River Collieries Co., 262 U. S. 341, 343, 344, 43 S. Ct. 565, 67 L. Ed. 1014 (1923), and that a margin of discretion exists for both courts and the legislature in order that they may assure just compensation — each may in this effort prescribe a rule of damages more favorable to the landowner than that which would satisfy the minimum requirement of the Constitution. Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374, 384 (1971). The court further said that just compensation has been equated with fair market value, and value used in that context has been variously described and said to have many meanings. Trenton v. Lenzner, 16 N. J. 465, 477 (1954).

In Lenzner, the court said:

* * * More significant is the increasing tendency displayed in recent cases of giving fair and weighty consideration to the consequential loss of business as an element of the compensation rightly due the owner. See Kimball Laundry Co. v. United States, [338 U. S. 1, 69 S. Ct. 1434, 93 L. Ed. 1765], supra; Housing Authority of City of Bridgeport v. Lustig [139 Conn. 73, 90 A. 2d 169], supra; 18 U. of Chi. L. Rev. 349 (1951); 35 Va. L. Rev. 1059 (1949). [at 477.]

Ten years latex, in State v. Gallant, 42 N. J. 583 (1964), the court said:

There is no logical reason, however, why a condemnee although compensated for the market value of his land and buildings should suffer all other loss incidental to the taking thereof for the public benefit * * *. [at 588]

The court in Sousing Authority of Clementon, supra, very clearly stated that it is in order to accommodate such an awakening to contemporary realities and such an adjustment to our changing times — because of an increasingly broad utilization of the power of eminent domain by a vastly greater number of entities concerned with public purpose with its ever expanding impact on domestic economic factors — that the rule of flexibility and the avoidance of a fixed standard has been formulated. Thus there is no precise and inflexible rule for the assessment of just compensation. Jersey City Redevelopment Agency v. Kugler, supra. The Constitution provides for just compensation. N. J. Const. 1947, Art. I, par. 20. The court further stated that the Legislature, in defining the duties of condemnation commissioners under N. J. S. A. 20 :l-9, supplied the following information:

* * * Thereafter they [the condemnation commissioners] shall meet at the time and place appointed and proceed to view and examine the land or other property and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the plaintiff for the land or other property and damages as aforesaid * * *. [Emphasis added]

Consequential damages for remainder lands have been allowed. State v. Gallant, supra. The Legislature cannot in any event constitutionally mandate the payment of less than “just compensation,” as the courts determine that to be. Housing Authority of Clementon, supra, 115 N. J. Super. at 479. The statute, N. J. S. A. 20:1-9, authorizes the condemnation commission — in a proper case — to assess damages.

Therefore defendant Board would be entitled to compensatory damages — that can be proved —• to the land and building remaining as a result of the partial taking by the State.

IV

The testimony of the expert sound engineer, Lewis Good-friend, was to the effect that there was an increase in the decible level from 1966 to 1971 due to the increase in traffic which impaired the teaching conditions in the school — in particular, on the side of the school facing the highway construction.

A further review of the testimony of the sound engineer and of his 1966 report indicates a comparison of the measurements from the same locations in the school, rooms 18 and 101 in the front of the building, and room 105 in the rear. Minimum and maximum sound pressure levels were measured in each room, both with the windows open and windows closed. On the basis of these measurements, the sound levels existing within the classrooms (18 and 101) with the windows closed would make the teaching of a class extremely difficult. When warm weather requires that the windows be open, the operation of classes in those rooms would be virtually impossible. Even if no conversation were required, concentration by the students in these classrooms under these conditions would be extremely difficult.

A comparison of the noise levels of April 1971 with those measured on July 5, 1966 shows that the interior classroom sound levels in rooms 18 and 101 were two to three times louder than in 1966, even with the windows closed. With the windows open, noise levels were as much as eight times louder than was measured iu 1966. Good-friend said that with the windows open room 18 is unusable; that the sound level conditions would be intolerable for teaching purposes. Room 101 is marginal and would require considerable effort on the part of the teacher. He also said that room 105 in the rear of the building is usable and essentially unchanged. He then explained in detail what changes would be necessary to “soundproof and air condition” the building. Charles Updike, of the State Department of Education, said that the ill effect on the school was due to the traffic, the noise, the exhaust fumes and the distractions that resulted from the highway construction and highway use in this particular area.

There was testimony from various teachers concerning the adverse conditions which made it difficult to teach effectively, especially in classrooms in the front of the school facing the highway construction and use. There was also testimony from the teacher of the handicapped children concerning the noise and sound pollution on the health and attitude of his pupils. There was also evidence as to the excessive air pollution caused by exhaust fumes due to the heavy traffic. Some of these teachers testified that these conditions did not exist before the highway construction.

Testimony of County Superintendent of Schools West indicated that the school has a normal lifetime of 50 to 60 years, but it has effectively been destroyed after only 20 years as an elementary school district and building.

Elizabeth Superintendent of Schools Dwyer testified as to the cost of busing the regular students and other students to the school during the construction phase and thereafter.

Architect McMurray testified regarding the cost of treating the windows, building and grounds as recommended by the sound engineer, together with an 8% architect’s fee. He said that the landscape work was necessary; that this included 50 minor and 20 major trees and shrubs, which would be used as a filtration factor to alleviate the air pollution.

There was no physical invasion of the play area bounded on the west by Brunswick Avenue and on the north by Clifton Street, except a slight slope easement on Clifton Street at its intersection with Cole Place. Although the traffic on Brunswick Avenue and Clifton Street may have been increased somewhat, neither street is part of the highway or access roads or ramps constructed in connection with Route 278.

This court has held, supra, that there was no taking of the remainder after the partial taking of the triangular part in the front of the school building. There was no evidence of what would be necessary in the play area to eliminate some of the difficulties complained of. Therefore this court cannot award compensatory damages on this claim.

It is true that the taking of other property in the area has had its effect on the area as a school district and has contributed to the diminution of the number of pupils in the school. As a result, it has been necessary to “bus” pupils to the school from other areas because of distance and the increased traffic due to the increase in the number of highways, access roads and ramps in the area. Purthermore, as long as the school is in operation it will probably be necessary to continue with the “busing” of the pupils. Under the circumstances in this condemnation ease, the State cannot possibly be charged with the expense of busing which will probably continue into the indefinite future.

The school must continue to be used in the City of Elizabeth because it would require a substantial investment to build new schools and the busing of pupils is a necessary corollary of this requirement. Thus the busing of the students cannot be said to be an item of damages to the remaining land and building as a result of the partial taking by the State.

In a condemnation case of this type the landowner is entitled to compensatory damages based on the necessity and cost of putting the remaining property in shape to meet the changed conditions caused by the highway. See Sterner, State Highway Commissioner v. Nixon, et al, 116 N. J. L. 418 (E. & A. 1936). The damages assessed should be based on replacement, renovation, construction or alteration costs of the facility. See Crookston, and Wichita, supra; see also State v. Gallant, supra. Furthermore, N. J. S. A. 20 :l-9 provides for the assessment of damages for the land or other property.

Thus it is the opinion of this court that the expense involved in “busing” pupils to and from the school is not an item of damages to the remaining property.

The beneficial use of the remaining land and buildings for educational purposes has not been destroyed as a result of the partial taking. However, the beneficial use of same has been impaired. The evidence reveals that the installation of a soundproofing and air conditioning system in the school will substantially relieve the unfavorable conditions caused by the air and sound pollution. Furthermore, the school is being utilized at the present time for teaching without the above mentioned improvements and the outdoor physical education program in the play area is also being conducted at the present time despite some difficulties and inconveniences.

The evidence submitted by the architects, McMurray and Grove, shows the expenses involved to remedy the conditions set out above. They are:

1. Air-conditioning classrooms and offices ............ $ 94,350.00
2. Landscape work .............................. 3,187.00
3. Alteration of window treatment for soundproofing as per Goodfriend’s testimony .................... 51,000.00
Total ..................................... $148.537.00
Added to this amount is an architectural fee of 8%, or .................................. 11,882.96
This makes a total of...................... $160.419.96

The estimate is as of May 7, 1965, the date the complaint was filed and the date of the commencement of this action. The statute, N. J. 8. A. 20 :l-9, provides in effect that damages are to be assessed as of the date of the commencement of the action for condemnation. As stated the condemnation commissioners awarded the sum of $3,700, which sum was deposited with the court.

Defendant Board is therefore entitled to the condemnation award of $3,700 and compensatory damages in the sum of $160,419.96, making a total of $164,119.96, together with costs.

The parties have stipulated that the sum of $3,700 was the value of the part taken. In State by State Highway Commissioner v. Fisher, 54 N. J. Super. 274 (App. Div. 1959), the court stated:

Allowance by the court of interest on an award serves the purpose in this State of compensating an owner for any loss suffered by him by reason of delay between the actual taking and the ultimate ascertainment of damages, and thereby assuring him of the full measure of “just compensation” required by the Constitution (1947, Art. I, par. 20; 1844, Art. I, par. 16) in view of the limitation of the implementing legislation fixing the date of commencement of the action as that as of which condemnation Commissioners shall determine value and the amount to be paid (R. S. 20:1-9), as amended; of. R. S. 20:1-2, as amended). Bergen County Sewer Authority v. Borough of Little Ferry, 15 N. J. Super. 43 (App. Div. 1951); see State v. Jones, supra (27 N. J. [257], at page 261). But such allowance must be determined “according to the considerations of equity and fair dealing in order to accomplish justice in each particular case” (Bergen County Sewer Authority v. Borough of Little Ferry, supra (15 N. J. Super., at page 52); New Jersey Highway Authority v. Ellis, 24 N. J. 1, 7-8 (1957); In re Parking Authority of Hackensack, 30 N. J. Super. 534, 543 (App. Div.. 1954)). In the manner in which this case reaches us and on the record before us, we need not be concerned with the difficult problem, considering the present state of our legislation adverted to above, of the proper method of ascertainment of just compensation where there has been a substantial delay between the taking and the award. See 13 Rutgers L. Rev. 284 (1958) and State v. Jones, supra (27 N. J. at page 263). [at 280-281]

The awarding of interest does not lend itself to rigid guidelines, but rather is best considered on a case-by-case basis in order to determine compensation which is just. Where condemnation proceedings restrict the profitable use or enjoyment of the property, interest ordinarily should be allowed. See State v. Nordstrom, 54 N. J. 50, 54, 55 (1969).

Thus in addition defendant Board is additionally entitled to interest at 6% a year on the sum of $160,419.96 from July 7, 1966, the date of the Declaration of Taking [which was two days after the sound levels were first tested in the school] to the final date of the trial in this matter, which was June 24, 1971. See Housing Authority of Hoboken v. Segal, 112 N. J. Super. 359 (App. Div. 1970).

Judgment will be entered in favor of defendant Board and against plaintiff State in the sum of $164,119.96 together with costs and interest at the rate of 6% per year from July 7, 1966 to June 24, 1971 on the sum of $160,419.96.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    TRENTON DRESSED POULTRY, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. JAMSON, INC., A NEW JERSEY CORPORATION, t/a CHICKEN HOLIDAY, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 21, 1971
    Decided October 12, 1971.
    Before Judges Sullivan, Leonard and Carton.

      Mr. Ernest J. Gihas argued the cause for appellant (Messrs. Madnich, Milstein & Mason, attorneys).

      Mr. Peter W. Kenny argued the cause for respondents (Messrs. Reussille, Cornwell, Mausner & Carotenuto, attorneys).
   Per Curiam.

We conclude that the trial court erroneously decided that defendant Jamson, Inc. was a de facto corporation from August 23, 1968 until December 31, 3968 when it secured legal status. The record does not support a finding that there ever had been any bona fide attempt to organize a corporation in the manner prescribed by statute (N. J. 8. A. 14A:1-1 et seq.). Asplund v. Marjohn Corp., 66 N. J. Super. 255, 264 (App. Div. 1961), certif. den. 35 N. J. 61 (1961).

The individual defendants consulted with an attorney on or about the date first mentioned and agreed to pay him a fee for the purpose of incorporating them under the name of “Chicken Holiday.” They also agreed to authorize 1000 shares and to issue 100 shares, 25 to each individual. However, the attorney ascertained that the above name was not available without consent of another user thereof. Following several unsuccessful attempts to secure that consent, Jamson, Inc. was incorporated on December 31, 1968.

At the time the individuals visited their attorney in August 1968 they, did not execute a certificate of incorporation. As a fact, no such certificate was ever executed until December, then only as a step in the incorporation of Jam-son, Inc. Authority exists for the proposition that in the absence of the execution of the necessary certificate, there could be no de facto corporation in the preceding months. Cottentin v. Meyer, 80 N. J. L. 52, 54 (Sup. Ct. 1910); see 8 Fletcher Cyclopedia Corporations, § 3811 at 90 (1966), and Conway v. Samet, 59 Misc. 2d 666, 300 N. Y. S. 2d 243, 246 (Sup. Ct. 1969).

We need not decide whether departure from that general rule is warranted under any circumstances. Here there is a complete absence of proof of the exercise of corporate powers until after Jamson, Inc. was legally incorporated. Checks given to plaintiff during 1968 in payment of merchandise then purchased merely disclosed the name “Chicken Holiday” and were signed individually by defendants T. Jerome Madison and James ÍL Gettis. Thus, the totality of the proofs require a conclusion that defendant Jamson, Inc. had not prior to its legal incorporation engaged in that degree of corporate user to warrant recognition as a de fado corporation. Asplund v. Marjohn Corp., supra, 66 N. J. Super. at 266-267. See Kiamesha Development Corp. v. Guild Properties Inc., 4 N. Y. 2d 378, 175 N. Y. S. 2d 63, 151 N. E. 2d 214 (Ct. App. 1958).

Accordingly, the judgment entered against defendant Jamson, Inc., as well as the judgment of dismissal entered in favor of the individual defendant, are reversed and the matter is remanded for a new trial.

Since it appears that portions of plaintiff’s merchandise were sold both before and after the incorporation of Jamson, Inc. (December 31, 1968), the judge on remand should determine the proportionate liability of the individual defendants and the corporate defendant. Individual defendants contend that plaintiff is estopped from asserting their personal liability. However, this contention lacks merit in view of our determination that no de fado corporation existed. Cottenlin v. Meyer, supra, 80 N. J. L. at 54-55; Stout v. Zulick, 48 N. J. L. 599, 602-603 (E. & A. 1886).

Reversed and remanded in accordance herewith. Jurisdiction is not retained.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. COPELAN EARL ELLIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 6, 1971—
    Decided October 14, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. Edward P. Eannigan, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, Attorney; Mr. Eannigan, of counsel and on the brief).

      Mr. Edwin E. Stern, First Assistant Prosecutor, argued the cause for respondent (Mr. Geofrey Gavilán, Prosecutor of Hudson County, Attorney; Mr. Stern, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant appeals from the denial of his fourth petition for post-conviction relief. On Hovember 29, 1967 he was convicted on his plea of guilty of assault with intent to rob. (N. J. S. A. 2A:90-2) and of being armed with a revolver while committing the assault (N. J. S. A. 2A:151-5). He was sentenced to two consecutive indeterminate terms at Bordentown Reformatory. When the authorities at Bordentown found that he had served a sentence in the South Carolina State Prison, they transferred him to the State Prison at Rahway. He was thereafter resentenced to a term of not less than five years nor more than seven years at the New Jersey State Prison for the violation of N. J. S. A. 2A:90-2, and to .a consecutive term of not less than two years nor more than three years for the violation of N. J. 8. A. 2A:151-5.

His present petition seeks relief on the ground that N. J. 3. A. 2A :151-5 as applied to him is unconstitutional in that it “punished him twice for one offense.”

The trial court considered the petition without referring it to the Public Defender and in a letter-opinion dated January 21, 1970 discussed the grounds for relief alleged and denied the petition, concluding that the grounds were “manifestly frivolous.” On February 24, 1970 defendant filed pro se a notice of appeal from such denial. On March 11, 1970 the trial court entered an order which granted leave to defendant to appeal as an indigent and which “further ordered that the Office of the Public Defender is hereby assigned to represent the defendant on said appeal.”

Defendant argues that the imposition of a second sentence for a violation of N. J. 8. A. 2A:151-5 punished him twice for one offense. He further argues that it was an abuse of discretion for the trial court to impose the second sentence for the violation of N. J. 8. A. 2A:151-5 when the maximum sentence had not been imposed for violation of N. J. 8. A. 2A:90-2.

The contentions are frivolous. Consecutive sentences for assault with intent to rob and for doing so while armed do not constitute offensive multiple punishment for the same violation. State v. Hodgson, 44 N. J. 151, 165 (1965), cert. den. 384 U. S. 1021 (1966). Such sentences are proper. State v. Hodgson, 44 N. J. 151, 164, supra; State v. Flowers, 109 N. J. Super. 309, 312 (App. Div. 1970); State v. Bennett, 75 N. J. Super. 207, 212 (App. Div. 1962); State v. Buffa, 65 N. J. Super. 421, 427 (App. Div. 1961). The imposition of the second sentence when the first was not a maximum was not an abuse of discretion. See State v. Hodgson, 44 N. J. 151, supra; State v. Bennett, 75 N. J. Super. 207, supra; State v. Buffa, 65 N. J. Super. 421, supra, in which the first sentence imposed was less than the maximum.

It is further argued before us that the trial judge erred in assigning the Office of the Public Defender to represent the defendant on this appeal.

B. 2:7-2 (a) deals with the assignment of counsel on appeal to persons convicted of indictable offenses. The last sentence of that rule states:

He shall thereupon be referred to the Office of the Public Defender, which shall represent him on such appeal or review and on such subsequent post-conviction proceedings or appeal therein as would warrant the assignment of counsel.

B. 3:22-6 deals with the assignment of counsel in postconviction relief proceedings. B. 3:22-6 (a) states that the first petition for post-conviction relief filed by a defendant shall be referred to the Office of the Public Defender if the defendant’s conviction was for an indictable offense, unless defendant affirmatively asserts his intention to proceed pro se. This provision is mandatory. B. 3:22-6(b) deals with the assignment of counsel on subsequent petitions .for post-conviction relief. In the 1969 and 1971 editions of the Buies Governing the Courts of the State of New J&rsey that rule as printed is:

Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be referred to the Office of the Public Defender. Counsel shall be assigned only upon application therefor and showing of good cause.

In the 1968 edition of the Buies the rule appeared as B. B. 3:10A-6 (h):

Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be referred to the Office of the Public Defender or counsel shall be assigned only upon application therefor and showing of good cause.

There is no indication there was any intent to change this rule. We must conclude that the changed wording of the rule appearing in the 1969 and 1971 editions was either inadvertent or a misprint. As presently written the rule is inconsistent and not susceptible of logical construction.

When a second or subsequent petition is filed under R. 3:22, it must be examined by the court. If upon examination the court feels that the petition conceivably raises an issue with any merit, the court has then found good cause to refer the petition to the Public Defender. After such reference the Public Defender will proceed in accordance with the rule. If the petition is not referred to the Public Defender, then the court will dispose of the petition, setting forth the issues raised by the petition and the reasons why the defendant is entitled to relief or why those issues are without merit. See State v. Odom, 113 N. J. Super. 186, 188-189 (App. Div.), certif. den. 58 N. J. 331 (1971).

There was no finding by the trial court of good cause to refer this petition to the Office of the Public Defender. The trial court having found that the grounds of the petition were “manifestly frivolous,” there could be no finding of good cause for reference to the Office of the Public Defender or assignment of counsel. The order assigning the matter to the Office of the Public Defender to represent defendant on this appeal was error. Defendant, however, was not prejudiced.

As we have pointed out, assignment of counsel on appeals under R. 2:7-2 (a) in post-conviction matters is directly related to the assignment of counsel under R. 3 :22-6. Where the petition has been referred to the Public Defender, he continues as counsel for any appeal. Where an appeal is taken from the denial of a second or subsequent post-conviction relief petition and the trial court did not find good cause to refer the petition to the Public Defender, the Public Defender or counsel should only be assigned where there is a finding on the record of “good cause.” Such finding can be made even though initially the trial court did not refer the petition to the Public Defender. The Public Defender is struggling at the present time to provide “legal representation of any indigent defendant who is formally charged with the commission of an indictable offense.” N. J. 8. A. 2A :158A-5. He should not be burdened with the representation of defendants on appeals from denials of a second or subsequent petition for post-conviction relief unless good cause has been shown for such representation.

It has been suggested that the change of wording of R. 3:22-6(b) was deliberately made to accomplish the following. A second or subsequent petition for post-conviction relief would in all cases be referred to the Office of the Public Defender. It would then be his obligation to investigate the facts and thereafter at a hearing before the court to attempt to show there was good cause for the appointment of the Office of the Public Defender to represent the defendant on the petition. Such a procedure would obviously cause a tremendous increase in the workload not only of the Public Defender but also of the courts. We feel that this construction of the rule is strained. We believe that if the Supreme Court had intended such a radical change resulting in such additional burden on the Public Defender and the courts, it would have specifically spelled out such intention.

The denial of the defendant’s fourth petition for post-conviction relief is affirmed.


author: Labrecque, J. A. D.

text:
    HARRISON H. BONSALL, PLAINTIFF-APPELLANT, v. THE TOWNSHIP OF MENDHAM, A MUNICIPAL CORPORATION OF THE COUNTY OF MORRIS AND STATE OF NEW JERSEY; THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MENDHAM; ELWOOD B. FAKE, BUILDING INSPECTOR OF THE TOWNSHIP OF MENDHAM, AND THE SEEING EYE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 22, 1971
    Decided October 15, 1971.

      Before Judges Kilkenny, Labkecqtie and Lane.'.

      Mr. Harrison H. Bonsall, appellant, argued the cause pro se.

      Mr. Robert A. Levenstien argued the cause for respondents Township of Mendham and Elwood B. Fake, Building Inspector (Messrs. O’Donnell, Conway and Leary, attorneys).

      Mr. John M. Mills argued the cause for respondent Board of Adjustment of the Township of Mendham (Messrs. Mills, Doyle & Muir, attorneys).

      Mr. Barry M. Johnston argued the cause on behalf of respondent The Seeing Eye, Inc. (Messrs. Jeffers & Dillon, attorneys; Mr. Robert J. DelTufo, of counsel).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiff appeals from an adverse judgment on his complaint in lieu of prerogative writs. In essence he challenges the granting of a variance authorizing the construction of a 20' x 70' building enclosure over a dog run located on property of The Seeing Eye, Inc. (Seeing Eye), and a resolution of the township committee permitting two other kennel buildings constructed in 1963 and 1966, for which no certificate of occupancy had been issued, to remain on the Seeing Eye premises.

Seeing Eye is a nationally known philanthropic and charitable corporation which trains Seeing Eye dogs for use by blind people and teaches blind people to use them. Most of the dogs required for its program are raised on the 100-aere farm tract here involved, located on Ironia Load in Mendham Township. When the property was acquired in 1948 it was zoned residential, and an amendment to the zoning ordinance added as a residential use "the scientific breeding and raising of dogs for philanthropic and charitable purposes * * Seeing Eye thereafter proceeded to develop and use the property for the selective breeding of dogs. Tn general, puppies would be kept on the property only until they were eight to ten weeks old, with a possibility of their return later for x-rays. The facilities when filled to capacity would hold 93 puppies and 96 mature dogs, but so far as the record before us reveals there were never that many dogs on the premises at one time. In 1967 7 males and 29 females produced 134 puppies over the entire year.

In 1958 plaintiff Harrison H. Bonsall became the owner of a dwelling located on Ironia Road, some 700 feet from the nearest Seeing Eye building. He testified he purchased without knowledge that the kennels were there. In 1961 a new zoning ordinance was enacted in which the provision which permitted the scientific breeding and raising of dogs for philanthropic and charitable purposes as a residential use was omitted. In 1963 and again in 1965 Seeing Eye applied for and received a building permit for the construction of a structure (the second was not completed until 1966) to enclose an asphalt dog run then in operation. This construction also resulted in the enclosure of an interior roadway which had separated the two dog runs. No certificate of occupancy was ever issued for either structure though they have since been in continuous use.

Sometime in July 1968 Seeing Eye began the erection of a third structure over another dog run, this time without having obtained a building permit. Plaintiff complained to the building inspector, who thereupon issued a "stop work” order and directed the removal of the half-completed structure within 30 days. An application for a building permit was subsequently denied on the ground that construction of the building would amount to an extension of a nonconforming use in violation of the zoning ordinance.

Thereafter, upon the alleged failure of the building inspector to take any further action against the structures, plaintiff filed a complaint in municipal court.

In the meantime Seeing Eye appealed to the board of adjustment from the building inspector’s refusal to grant a permit for the construction of the 1968 building and, alternatively, sought a variance pursuant to N. J. 8. A. 40:55-39(d). At the hearing before the board it waived the determination of whether the proposed structure amounted to an extension of a nonconforming use and supported its variance application by proof that the structure was solely intended to enclose a dog run which preexisted the amended ordinance, and that it would not increase the capacity of the kennels but would greatly reduce the noise emanating from the dogs kept in that portion of the premises. There was testimony that cleanliness would be facilitated by the enclosure of the dog run. A real estate expert testified that the erection of the building would have no effect on surrounding property values — that it was hardly visible to any adjoining property owners. Plaintiff testified that the noise from the kennels had increased since 1959.

On November 25, 1968 the board of adjustment recommended to the township committee that a variance be granted. The township committee approved the variance by a resolution dated January 27, 1969. It attached a condition that upon the erection of the structure the applicant would not be permitted to attach an open dog run to it. Additional resolutions directed that no action be taken to compel the removal of the first two buildings, but that the building inspector file and the township attorney prosecute complaints against Seeing Bye.

The present action was instituted in March 1969. One month later the building inspector filed a complaint in the municipal court based upon Seeing Eye’s failure to obtain certificates of occupancy for the first two buildings and its failure to obtain a building permit for the third building. The complaint filed by plaintiff in the municipal court was thereupon dismissed.

The board of adjustment found, in essence, that (1) Seeing Eye was a nonprofit philanthropic corporation whose purpose it was to help blind people; (2) the premises in question were used for the scientific breeding and raising dogs for the use of the blind; (3) the kennel operation had become a nonconforming use; (4) the dog run which it was proposed to enclose had been used for the breeding and housing of dogs since 1949; (5) the proposed structure would improve animal husbandry; (6) it .was located several hundred feet from Ironia Road and centrally located within the 100 acres owned by Seeing Eye, and (7) .the proposed building would lessen the noise of barking dogs. It concluded that the variance could be granted without detriment to the public good and that it would not substantially impair the intent and purpose of the zone plan and zoning ordinance, and that it would further a use beneficial to the general welfare.

At the pretrial the court recognized the pendency of the municipal court complaint referable to the 1963 and 1966 structures, and all parties entered into a stipulation as follows :

The present attorneys and the plaintiff pro se agree that the Court shall decide all of the meritorious issues, including the granting of the permits in 1963 and 1966 and, if properly granted, whether the Court should then order the issuance of a certificate of occupancy; or if improperly granted is the plaintiff estopped by reason of inaction from complaining about the improper issuance; or was there sufficient color of authority, plus reliance and action thereon by Seeing Eye to cause the Court to find that equitably Seeing Eye is entitled to a certificate of occupancy. In either of the last two eventualities, should the Court restrain further prosecution in the municipal court of cases there pending concerning failure of certificate of occupancy.

On the issue of whether the enclosure of the dog run amounted to an enlargement of a nonconforming use the court, after visiting the premises and hearing oral argument, concluded that it was. However, it held that the use to which the property was devoted was of institutional dimension and satisfied the general welfare requirement for the granting of the variance. It further found that the negative criteria referred to above had been met. The court declined to order the 1963 and 1966 buildings to be removed. Instead, it ordered certificates of occupancy to issue subject to compliance of the structures with the building code. It found no evidence of fraud, deceit or lack of good faith on the part of Seeing Eye in their construction and concluded that the challenge to the two buildings in question was barred by estoppel.

The crux of plaintiff’s challenge to the granting of the variance is that it substantially impaired the intent and purpose of the zone plan and zoning ordinance and was not supported by the special reasons required by N. J. S. A. 40:55-39(d).

Municipal governing bodies may exercise broad powers in their zoning regulation of land and structures. Ward v. Scott, 16 N. J. 16, 22 (1954). Local officials familiar with the community’s characteristics and interests have been held to be best equipped to pass initially upon applications for variances. Id. at 23. In general, the board of adjustment is to be sustained if its decision comports with the statutory criteria and is based upon adequate proofs. Yahnel v. Board of Adjustment, Jamesburg, 79 N. J. Super. 509, 519 (App. Div. 1963), certif. den. 41 N. J. 116 (1963). Where an application for a variance has been given careful consideration by the board and the municipal governing body, judicial interference is called for only when the challenged action is found to be arbitrary, capricious or unreasonable and amounts to a manifest abuse of their discretionary authority. Ward v. Scott, supra, 16 N. J. at 23; Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 423 (1952).

We are in accord with the conclusion of the trial judge that the findings of the board, that special reason existed for the grant of the variance and the negative critera required by N. J. S. A. 40:55-39(d) had been met, are supported by the proofs. In Andrews v. Ocean Tp. Board of Adjustment, 30 N. J. 245, 250-251 (1959), it was held that the zoning criterion of promotion of the general welfare was in itself a suffiicent basis on which to ground a (d) variance provided the negative criteria of the statute were also satisfied. Ho rigid formula has been devised to test a valid (d) variance on general welfare grounds and each ease must turn upon its own circumstances. Id. at 251. Typical variances sustained on that basis have been for certain uses of institutional dimension. These have included parochial schools, Andrews v. Ocean Tp. Board of Adjustment, supra, and Black v. Montclair, 34 N. J. 105 (1961); a hospital for the emotionally disturbed, Kunzler v. Hoffman, 48 N. J. 277 (1966); a telephone exchange, Yahnel v. Board of Adjustment, Jamesburg, supra; a private school, Burton v. Montclair, 40 N. J. 1 (1963). See also Kramer v. Board of Adjustment, Sea Girt, 45 N. J. 268, 286, 290 (1965), which involved a replacement for a seaside hotel.

We are in agreement that the proposed use was one of institutional dimension in furtherance of the public welfare which qualified as a special reason for the grant of the variance. Seeing Eye was admittedly a nonprofit organization devoted solely to helping blind people gain independence and freedom via the resumption of mobility through the use of Seeing Eye dogs. Its activities extended in many directions from its home base in Morris County and could be said to be national in scope. Hot all dogs were suitable for Seeing Eye use, and most of the dogs finally selected for its program were raised on the 100-acre farm here involved.

We are satisfied that the portion of the program devoted to the breeding and raising of puppies is so inextricably intertwined with the remainder of Seeing Eye’s program of restoring the mobility of blind persons as to justify the finding by the board that it constituted a special reason for the granting of the variance. Preliminary and absolutely essential to the carrying out of the program was the selective breeding of dogs who would be physically and temperamentally fitted for further training. Had this portion of the program been carried out on the premises where Seeing Eye’s other activities were carried out, there would be little doubt as to the status of the operation. It did not cease to serve the public welfare because the breeding phase of the program was carried out (since 1949) on a 100-acre farm in a rural area. Actually, it may be said that the public welfare was further served, since puppies are given to barking and pose problems of cleanliness which point to a farm, rather than a built-up area, as an appropriate location for them.

Kohl v. Mayor, etc., Fair Lawn, 50 N. J. 268 (1967), cited by plaintiff, does not dictate a contrary result. There the court was dealing with a variance for a proposed addition to a dairy (a nonconforming use in a residential area) and rejected a finding below that since milk was an indispensable article of food and its distribution vital to the welfare and health of its customers, this afforded a special reason for the grant of the variance. Id., at 2?9. We are not here concerned with the sale of a product, whether it be puppies or milk. The puppies were not raised for sale but as an essential and component part of a complete program which inherently served the public good. The program afforded relief to blind people from their disability, just as a school affords relief from ignorance or a hospital from the pain and disability occasioned by injury or disease.

Plaintiff also urges that the negative criteria prescribed by the statute were not satisfied. We disagree. The proofs overwhelmingly support the findings of the board that the variance could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance. There was uncontradicted expert testimony that the value of adjacent land would not be affected. The proposed structure was located on a large tract, screened by shrubbery and hardly visible from the highway. Persons living closer to the area than plaintiff stated they were not disturbed by the Seeing Eye operation. The proofs were ample that construction of the structure would reduce noise and create more sanitary conditions.

We find no merit to plaintiff’s challenge to that por7 tion of the judgment of the Law Division -directing the issuance of certificates of occupancy for the 1963 and 1966 buildings, subject to. their compliance with the building code. While the building permits for the two buildings were improperly issued, the court, under the agreement that it should settle all controversies, properly .exercised, its equitable powers to require that certificates ' of occupancy issue. The alternative would have been to order, the removal of the two buildings while staying their actual remoyal pending an application for a proper variance. The court’s finding of Seeing Eye’s good faith reliance on the building permits justified the invocation of estoppel as a bar to their removal. Cf. Sautto v. Edenboro Apartments, Inc., 69 N. J. Super. 420, 429-430 (App. Div. 1961); Tremarco Corp. v. Garzio, 32 N. J. 448, 454-455 (1960). It would have been a gross inequity to penalize it for the building inspector’s apparent misinterpretation of the ordinance. See Jantausch v. Verona, 41 N. J. Super. 89, 94—95 (Law Div. 1956), aff’d 34 N. J. 326 (1957). His view can hardly be said to have been unreasonable. Erom a reading of the resolution recommending the variance it would appear that the board itself was not too sure that construction of the 1968 building amounted to an extension of the nonconforming use.

By reason of the foregoing, we find it unnecessary to determine whether plaintiff, who was the only one seeking removal of the two buildings, was in such laches as to be disentitled to such relief. As noted, he purchased his property in 1958, allegedly without even having been aware of the presence of the dog kennels 700 feet away. Though he knew of the passage of the new ordinance in 1961, he did nothing when the 1963 and 1966 buildings were erected. The record reveals no lack of past complaints by plaintiff concerning the operation of Seeing Eye’s kennels. Even though he may not have been aware until 1968 of the omission to obtain certificates of occupancy for the two buildings, it is by no means clear that he was not previously aware of their existence. If, as he testified, he did not become aware of - them until 1968, it is difficult to avoid the inference that the amount of noise emanating from them was minimal. The court specifically found that' the noise had not materially increased since construction of the two buildings. The proofs support this finding.

Our consideration of the remaining points made by plaintiff convinces us that they are without merit. We so hold notwithstanding the apparent impatience of the chairman of the board of adjustment and the somewhat discourteous treatment accorded plaintiff at times during the hearing. We are in accord with the comment of Judge Waugh that plaintiff “has a right to oppose what others approve. He is entitled to courteous treatment and a full hearing. I recognize that good citizens give time to public bodies, such as zoning bodies. I can only suggest that those who do not have patience and an open mind would serve best by stepping aside,” However, we cannot say that plaintiff has been deprived of a fair hearing. The record before us is full and complete and speaks well for the study and preparation which plaintiff, a layman, gave to the case. Additionally, plaintiff has since had full opportunity to present his contentions before the governing body, before the Law Division and now before us.

Plaintiff’s contention that he was not permitted to elicit from Mr. Merritt, chairman of the planning board in 1961, the intent of that board in eliminating the provision permitting the breeding of Seeing Eye dogs in the zone, is likewise without merit. The intrepretation to be accorded the ordinance was to be gathered from the ordinance itself rather than from the testimony of former members of the board. The conclusion is clear that the revised ordinance rendered Seeing Eye’s activities in Mendham Township a nonconforming use.

The judgment of the Law Division is accordingly affirmed.


author: Goldmann, P. J. A. D.

text:
    KENNETH J. SHEA, APPELLANT, v. BOARD OF TRUSTEES, POLICE & FIREMEN’S RETIREMENT SYSTEM, DIVISION OF PENSIONS, DEPT. OF TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 21, 1971
    Decided October 15, 1971.
    Before Judges Goldmann, Collestek and Mintz.

      Mr. Raymond J. Dietrich argued the cause for appellant (Messrs. Dietrich & Stockman, attorneys).

      Miss Prudence H. Bisbee, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Shea, a patrolman in the employ of Hamilton Township since July 1, 1956, applied for an accidental disability retirement pension pursuant to N. J. S. A. 43 :16A-7 by reason of an alleged traumatic incident experienced in the early hours of April 17, 1968. The application was rejected by defendant Board of Trustees of the Police and Eiremen’s Retirement System after review of the application and the supporting information. However, the Board recognized that Shea was totally and permanently disabled for police duty and approved an ordinary disability retirement. Shea’s timely appeal was followed by an administrative hearing before Hearing Officer Miller of the Division of Pensions. After considering certain stipulations entered on the record, Shea’s testimony, and the depositions of his treating doctor, A. J. Migliori, and the pension system’s examining physician, Martin Epstein, the hearing officer filed his report recommending approval of the application for accidental disability retirement. The matter was again reviewed by the Board of Trustees which, by its determination of August 17, 1970, denied the application, with the result that Shea was granted only ordinary disability retirement under N. J. S. A. 43:16A-6. This appeal followed.

N. J. 8. A. 43 :16A—7, part of the Police and Eiremen’s Retirement System Act (N. J. 8. A. 43:16A-1 et seq.) provides for an accidental disability retirement allowance upon the written application by a member of the retirement system, provided, however, that

(1) * * * the medical board, after a medical examination of'such member, shall certify that the member is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member’s willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. * * *
i'fi ¡Í: * >jc # * * *
(4) Permanent and total disability resulting from a cardiovascular, pulmonary or museulo-skeletal condition which was not a direct. result of a traumatic event occurring in the performance of duty shall be deemed’ an ordinary disability.

This language parallels that contained in N. J. 8. A. 43:15A-43, part of the Public Employees’ Retirement System Act (N. J. 8. A. 43:15A-6 et seq.), with which-we dealt in Hillman v. Board of Trustees, Public Employees' Retirement System, 109 N. J. Super. 449 (1970). We there pointed out (at 459) that the use of the words “traumatic event” represented a significant departure from the word “accident” previously found in the act, L. 1954, c. 84, § 43, and that the Legislature, by use of those words and the addition-of a paragraph identical to that in N. J. 8. A. 43:16A-7(4), quoted above, “clearly expressed an intention to make the granting of an accidental disability pension more difficult.”

In Hillman we held (at 460) that important to a determination of the existence of a “traumatic event” • were the following three factors — that “(a) the event be identifiable as to time and place, (b) the injury or disability resulted directly from it, and (c) the event was undesigned, unexpected and unusual.”

We join in the determination of the Board of Trustees that what happened- here did not satisfy the third of these requirements. The facts are fairly set out.in that-determination. Briefly, Shea sustained an acute myocardial infarction due to arteriosclerotic coronary thrombosis on April ,28, 1966, and was treated for that condition at.St. Erancis Hospital, Trenton, by Dr. Migliori, a cardiologist. The patient was discharged after three weeks and placed on anti-coagulation therapy treatment for some eight months. Dr. Migliori examined him on April 1, 1967 and again on July 21, 1967, when he noted there were no outstanding cardiovascular or respiratory symptoms and directed that Shea go on an annual cardiogram and office visit program thereafter.

Shea returned to work on August 1, 1966 and was assigned light duties at the station house. He resumed his regular duties on February 6, 1968. On April 16, 1968 he reported .for work on the 11 p.m. to 7 a.m. shift and went out on patrol duty, with Officer Otter driving. Shea testified that at 3:20 or 3:30 a.m. of April 17 he and his partner were directed by police radio to go to St. Francis Hospital “to check on a man coming in by the Yardville ambulance, a possible heart attack victim, just to see if he was D.O.A. and if there were any other unusual circumstances involved.” The officers immediately proceeded to the emergency room at the hospital where they found the victim, who had been dead on arrival from a coronary attack. Shea said that as soon as he saw the body “I started thinking about myself, I got all upset and nervous and apprehensive and so forth,” because the man was a little younger than he. He proceeded to obtain information as to the victim’s name, age and previous heart condition, by inquiring of the widow, who was upset and somewhat incoherent, and the hospital. Upon completing this investigation Shea phoned in his report and resumed his tour of duty, having been in the hospital for some 20-30 minutes.

Shea further testified that while on patrol some ten minutes after leaving the hospital he broke into a sweat, experienced terrific pains across his chest, and both arms started aching. He asked Officer Otter to drive him back to St. Francis Hospital, stating that he thought he was having a heart attack. He was admitted to the hospital at 4:10 a.m., where he was treated during the following three weeks by Dr. Migliori. The final diagnosis, as in 1966, was acute myocardial infarction due to arteriosclerotic coronary thrombosis.

Officer Otter did not testify at the hearing. The official police department day sheet for April 17, 1968 shows that the call went out to Officers Shea and Otter on patrol at 2:50 a.m. •—• not 3 :20 or 3 :30, as Shea testified. The next entry, recorded at 4:02 a.m., states that Shea was admitted to St. Eraneis Hospital wtih a possible heart attack. (We note, in passing, that in his sworn application for retirement Shea stated that the detail began at 2:50 and not 3:20 a.m. ).

There was nothing “unexpected” about what happened at St. Eraneis Hospital in the early hours of April 17. Shea testified that on the average he would annually investigate 50 or 60 emergency admissions at hospitals in the Trenton area. Of these, 10 to 20 percent would be coronary victims, and some would be dead on arrival. In short, the regular course of police duty called upon not infrequent investigations of coronary cases. Accordingly, the assignment to which Shea responded on April 17, 1968 was neither “unexpected” nor “unusual.”

Whether the disability suffered by the officer resulted “directly” from what he experienced at the hospital is a question that does not require resolution here.

Einding no unexpected or unusual event that would qualify as “traumatic,” the Board’s determination is affirmed.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. TRAP ROCK INDUSTRIES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 6, 1971
    Decided October 15, 1971.

      Before Judges Lewis, Kolovsky and Halpeen.

      Messrs. Marvin E. Schaefer and Dennis M. Crawford argued the cause for appellant (Messrs. Schaefer & Fitzgerald, attorneys).

      Mr. Michael D. Varbalow, designated.attorney, argued the cause, for respondent {Mr. A. Donald Bigley, Camden County Prosecutor, attorney).

      Mr. Jay T. Ahern filed a brief and appeared amicus curiae on behalf of New Jersey Turnpike Authority (Mr. David W. Doivd, attorney).
   The opinion of the court was delivered by

Halpern, J. A. D.

Defendant was charged with six separate violations of Regulation 11 of the New Jersey Turnpike Authority and convicted thereon in the Runnemede Municipal Court and at a de novo trial in the Camden County Court. It was fined $15 and costs on each offense by the County Court and it appeals from the judgment of conviction in that court. Regulation 11 provides:

LOOSE CARGO
Commercial vehicles carrying materials not otherwise boxed, crated, bagged or packaged and inclined to spill, must have the load completely covered by a tarpaulin, firmly secured on all sides. [Emphasis supplied 1

Defendant seeks to set aside the convictions upon the grounds that (a) it did not violate Regulation 11; (b) Regulation 11 is unconstitutionally vague in failing to provide a proper standard, and (c) Regulation 11 exceeds the scope of the Authority’s power given it by N. J. S. A. 27:23-29.

The trial judge could find from the testimony, beyond a reasonable doubt, the following: Defendant owned and operated large tractor-trailers which it used to transport various sized stone and stone dust on the New Jersey Turnpike, at speeds of approximately 60 miles per hour, without the loads being covered by tarpaulins. As a result thereof stones and dust had spilled from trucks similarly loaded and had damaged other vehicles and scattered debris on the Turnpike. The State Police had warned defendant, prior to the day these violations occurred, that such loads should be covered as required by Regulation 11 or it would be prosecuted.

On. the day of these violations the trucks were uncovered and loaded with stone and stone dust to points varying from 2 to 18 inches below the top of the sides and tailgates. The trial judge could properly find that while no stones were seen to spill from the six trucks on the day in question, nevertheless since the loads were uncovered they were inclined to spill. To convict for a violation of Regulation 11 it was unnecessary to prove actual spillage. We are satisfied from our review of the record that there was sufficient credible evidence therein to support the trial judge’s determination that the loads in question were inclined to spill as proscribed by the Regulation.

Defendant’s argument that Regulation 11 is unconstitutionally vague because of insufficient standards is without merit. The purpose of the Regulation is clear — it is intended to prevent spillage from trucks onto a high-speed highway with resulting damage to others on the highway, and littering the highway with debris that might cause accidents. The Authority’s expertise in dealing with the condition of the Turnpike’s roadbed, weather conditions and other factors must be recognized.

Regulation 11, which is specially geared to regulate loaded trucks travelling on the Turnpike, is akin to a similar prohibition contained in N. J. S. A. 39:4-77 regulating loaded trucks travelling on city streets and other types of highways. The statute provides in part:

No person shall cause or permit a vehicle to be so loaded or operate a vehicle so loaded that the contents or any part thereof may be scattered in any street. * * * [Emphasis supplied]

Here, too, the Legislature saw fit not to require proof of actual spillage in order to convict for such violation. How else could the Authority and the Legislature describe what they proscribed? Their meaning is clear even though couched in general and broad terms due to the nature of the problem. State v. Smith, 46 N. J. 510, 518-519 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1967); State v. Frankel, 42 N. J. Super. 7, 11 (App. Div. 1956). The term used in the Regulation, “inclined to spill,” and the statutory language, “may he scattered,” are words of everyday usage and clearly eliminate the necessity of showing actual spillage. State v. Wasserman, 75 N. J. Super. 480, 491 (App. Div. 1962), aff'd 39 N. J. 516 (1963). Men of ordinary intelligence, and in particular those who are engaged in the operation of trucks with loads having a tendency to spill, do not have to guess at the meaning of “inclined to spill” or differ as to its application. State v. Joas, 34 N. J. 179, 185 (1961). In any event, today “we have attached greater significance to the presence of procedural and judicial safeguards against unreasonable and unwarranted agency action than we have to the presence of details in the statutory standards.” Motyka v. McCorkle, 58 N. J. 165, 178 (1971). So viewed, we see no constitutional infirmity in Regulation 11.

Nor is there merit to defendant’s contention that Regulation 11 exceeds the scope of the Authority’s power under N. J. S. A. 27:23-29. The pertinent part of the statute provides:

The Authority is hereby authorized and empowered to make, adopt and promulgate regulations referred to in this section in accordance with the provisions hereof.
Regulations adopted by the Authority pursuant to the provisions of this section shall insofar as practicable, having due regard to the features of any such turnpike project and the characteristics of traffic thereon, be consistent with the provisions of Title 39 of the Revised Statutes applicable to similar subjects.

Again, it is clear that the Legislature recognized the necessity of having specially promulgated regulations to govern Turnpike traffic because of the nature of the road, and gave the Authority broad powers to regulate its use. We see nothing inconsistent between Regulation 11 and N. J. S. A. 39 :4-77; in fact, they seek to eliminate the same evils and complement each other having regard for the roads and highways involved. See State v. Imperatore, 92 N. J. Super. 347, 353-354 (App. Div. 1966), certif. den. 48 N. J. 442 (1967).

Affirmed.