text:
    RICHARD M. SANDLER, LEWIS N. SANDLER, AND SANDLER AND WORTH, INC., PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPRINGFIELD, H. B. & F. REALTY CO., AND W. D. SNYDER & SON, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 2, 1970
    Decided February 16, 1971.

      Before Judges Confoed, Kolovsky and Carton.

      .Mr. Murray J. Laulicht argued the cause for appellants (Messrs. Lowenstein, Sandler, Brochin, Kohl «& Fisher, attorneys) .

      Mr. Andrew M. Epstein argued the cause for respondents (Messrs. Epstein, Epstein, Brown, Bosék & Turndorf, attorneys) .

      Mr. Fred B. Gruen argued the cause for respondent Board of Adjustment of the Township of Springfield (Messrs. Gruen & Goldstein, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Plaintiffs, adjoining property owners, appeal from a judgment of the Law Division that defendants H. B. & E. Realty Co. and W. D. Snyder & Son are entitled to a permit to build a restaurant on their resubdivided 28,182-square-foot lot notwithstanding municipal upgrading of minimum lot sizes for the zone in question by revision of the zoning ordinance three months after final planning board and governing body approval of the resubdivision but three weeks prior to the application for the building permit. We are required to reevaluate, as against the particular fact-situation here presented, interpretations of the Municipal Planning Act (1953), particularly N. J. S. A. 40:55-1.18, set forth in Hilton, Acres v. Klein, 64 N. J. Super. 281 (App. Div. 1980), mod. 35 N. J. 570 (1961); Levin v. Livingston Tp., 35 N. J. 500 (1961) ; Pennyton Homes, Inc. v. Planning Bd. of Stanhope, 41 N. J. 578 (1964) ; and, particularly, United, States Home & Develop. Corp. v. LaMura, 89 N. J. Super. 254 (App. Div. 1965).

The action of the Law Division was essentially an affirmance of the determination of the Springfield Board of Adjustment on remand, apparently acting as an appellate agency to review the denial of a building permit pursuant to N. J. S. A. 40:55—39(a), that defendants were entitled to the permit as a matter of law under the Planning Act. Defendants, however, had not made such a claim before the board, but were seeking a hardship variance from the upgraded minimum lot size and side-yard requirements of the revised zoning ordinance, pursuant to N. J. S. A. 40:55-39(c), and the matter was heard before the board solely on that theory. The legal issue on which the decision was ultimately based was posed, near the end of the hearing, by the board attorney, and the parties were requested to file memoranda on the point. The board made no finding or determination on the basic hardship-variance question brought before it by defendants’ application (except as to the side-yard requirement).

The essential facts, some of which were elicited on and after argument before us, are as follows. Defendants own a 55,013-square-foot parcel of land situated on a center island in U. S. Highway 22 in Springfield. Prior to the subdivision approval there were a few small scattered structures thereon, according to the filed map. There is commercial use of other parts of the island, including a carpeting store of plaintiffs. Traffic north of the island is one-way westbound and that to the south is one-way east-bound. The property abuts both lanes. We may take judicial notice that this highway, generally, and at the location in question, is one of the most heavily traveled and congested in the State. The tract was previously designated as Lots 3, 4 and 5, Block 115 on the township tax map, and was zoned G-B (General Business) under the 1955 zoning ordinance, subject to a minimum lot area of 7,500 square feet and width of 60 feet.

Some time in May 1968 defendants applied to the planning board for resubdivision of the tract so as to reduce the number of lots to two, although sale of neither was then contemplated but simply, according to the application, “commercial development.” Lot 3 was to be decreased from 29,592 square feet to 26,830 and Lots 4 and 5 combined and increased from 25,420 square feet to. 28,182.

The planning board on June 4, 1968 recommended to the township committee approval of the separate applications of defendants for preliminary and final approval of the resubdivision, and that body concurred June 11, 1968. (The Springfield ordinance provides for approval by the governing body of planning board action.) The only specific condition imposed by the board was that new Lot 4 (former 4 and 5) not be allowed egress to west-bound Route 22 in view of the limited frontage on that side of the lot (78.48 feet) (the frontage of the entire holding on that side was 228.48 feet). The minutes of the planning board hearing show a statement by the township engineer that “the existing utilities are adequate.”

On September 24, 1968 the township committee adopted on final reading a revised zoning ordinance placing the property in question and other highway property in a new H-0 (Highway Commercial) zone, with minimum lot area of 40,000 square feet, width of 100 feet and depth of 200 feet.

That revision stemmed from a comprehensive master plan adopted by the Springfield Planning Board on July 1, 1965 which proposed the establishment of a highway commercial district consisting of three center islands in Route 22 (including the subject property) and the northern border of that highway. The plan recommended that “Route 22 commercial development should be controlled” and mentioned, among other deleterious conditions along the highway, “dangerous traffic conditions” and “congestion.” The planning board prepared an implementing first-draft revision of the zoning ordinance dated December 1966 calling for 40,000-sq.-ft. minimum lots for the proposed new highway commercial district. The board in May 1967 submitted a report to the mayor and governing body, including a rough draft revision of the ordinance with the same 40,000-sq.-ft. provision. There were meetings with various groups by the planning board and township committee to discuss the final draft of the ordinance, and it was introduced and passed on first reading May 28, 1968, and, as noted, on final reading on September 24, 1968 after publication on June 6, 1968 of the entire ordinance and of notice of its passage on first reading.

The minutes of the hearing of the resubdivision proceeding state that plaintiffs’ attorney objected to the resubdivision on tbe ground “the lots would be undersized” — a statement which plaintiffs say, without contradiction, referred specifically to the then pending revision of minimum lot sizes of which defendants must be deemed to have been aware in the light of the aforostated history.

On October 16, 1968 defendants applied to tbe building inspector for a permit to build a restaurant on new resubdivided lot 4, to cost $34,000, with provision for off-street parking for 46 cars. Defendants had previously negotiated a lease for operation of the restaurant to a national highway-restaurant chain. The application was denied by the building inspector on the grounds (a) location of the plot in the “Highway Commercial District” calling for a minimum lot area of 40,000 sq. ft. (“under the Township of Springfield Schedule of Limitations, dated May, 1967 [sic] * * *”) whereas the lot was only 28,182 sq. ft.; (b) failure to meet the side-yard requirement of 25 feet.

There followed the proceedings before the board of adjustment alluded to above. After the hearing the board adopted a resolution which, in effect, approved the “variance” as to lot size on the ground that the applicant was entitled to build on the resubdivided lot because the resubdivision had been approved prior to the adoption of the revised zoning ordinance and the applicant had applied for a building permit within “a reasonable time” after grant of final subdivision approval. It is obvious that in this regard the board was applying its understanding of our decision in U. S. Home & Develop. Corp. v. LaMura, supra, wherein we held, in a case involving a residential development project of hundreds of homes and substantial concomitant improvements, that the Planning Act guaranteed the developer a reasonable time after final subdivision approval to apply for building permits free from any subsequent municipal upgrading of minimum lot sizes by ordinance amendment. The board here denied the side-yard variance on the ground the restaurant building could be so located on the lot as not to need it.

Plaintiffs thereupon instituted an action in lieu of prerogative writs seeking to set aside the area variance. Defendants’ answer raised the defense of immunity from municipal upgrading of “general terms and conditions” under N. J. S. A. 40:55—1.18. Both sides moved for summary judgment. Defendants submitted in support of their motion an affidavit of one Saul Seltzer, an engineer-employee. This described the activities undertaken by defendants in purported reliance on the subdivision approval. These included demolition of buildings, removal of debris, preparation of plans and surveys, and negotiations with a potential lessee. Much of the affidavit is on information and belief and conclusional. Dates are not specified, and the only evaluation of expense is $3,000 for demolition and removal of debris.

At the hearing on the motions counsel for the board explained that the use in the resolution of the term “variance” was an error, and that the decision was actually made under N. J. S. A. 40:55-39 (a). The court remanded for a clarification of the resolution by the board.

The board complied with the order by adoption of a revised resolution in substance the same as its first action but omitting allusion to the granting of a variance. Thereupon the trial court filed an opinion essentially in agreement with the conclusions of law and fact contained in the board’s resolutions. Express reliance was had on our opinion in LaMura, referred to above, the court holding that the four-month interval between grant of final subdivision approval and application for building permit was reasonable as a matter of law, the corresponding interval in LaMura having been ten months.

After careful reflection upon the issue presented, we are satisfied that on the special facts here presented, the immunization of defendants from the normal municipal legislative power in respect of zoning beyond the immunity any other owner of similar property would enjoy were there no prior resubdivision of the property is unwarranted and not compelled by any prior judicial construction of the Planning Act. Had defendants’ lots originally been two in number, and in the dimensions of the here resubdivided lots (so as not to require an application for resubdivision approval by the planning hoard), defendants would without question he fully subject to the terms of the revised zoning ordinance. It is elementary that short of constitutional considerations a property owner has no vested right to build on a lot as against subsequent upgrading of minimum lot sizes by zoning ordinance or amendment thereof. Even the grant of a building permit would not immunize him from subsequent upgrading of lot sizes by ordinance as late as the pendency of judicial proceedings, absent substantial pecuniary reliance on the permit prior to notice of the pendency of the revised ordinance, Morris v. Postma, 41 N. J. 354, 362 (1964), or a situation of inequitable conduct by, or circumstances justifying applying estoppel against the municipality, as in Tremarco Corporation v. Garzio, 32 N. J. 448 (1960), and Gruber v. Mayor, etc. Raritan Tp., 39 N. J. 1 (1962), respectively.

Here, approval of defendants’ resubdivision application called for no investment on their part in streets, utilities, drainage or any of the other diverse kinds of expenditures for improvements ordinarily imposed upon the developer of even a moderate-size tract of raw land. The expenses, and activities on the property, necessarily attendant upon readying the land for construction of a restaurant for a lessee, were precisely the same as they would have been had the lot lines originally been as resubdivided so as not to have required official resubdivision approval. The necessity for applying for resubdivision approval in this case was simply the circumstance that although the statute permits the municipality to exempt from the requirement of approval such subdivisions (which by statutory definition includes resubdivisions, N. J. S. A. 40:55-1.2) wherein the number of new lots is less than a given number or those which do not involve new streets (N. J. S. A. 40:55-1.14), the Springfield planning ordinance did not provide for such exemptions, and defendants could never have legally sold any portion of the land in units of the altered size without official approval pursuant to the act. N. J. S. A. 40:55—1.23.

Notwithstanding the strong considerations grounded in public policy against giving defendants any special immunity from the salutary exercise in the general public interest of the municipal zoning power in this situation, they argue that the literal terms of the statute and the decisions in the Hilton Acres and LaMura cases, supra, compel it. The statutory language relied upon reads (N. J. S. A. 40:55-1.18) :

The governing body or the planning board, as the case may be, may tentatively approve a plat showing new streets or roads or the re-subdivision of land along a mapped street. This tentative approval shall confer upon the applicant the following rights for a 3-year period from the date of the tentative approval:
(1) that the general terms and conditions upon which the tentative approval was granted will not be changed.
(2) that the said applicant may submit on or before the expiration date the whole or part or parts of said plat for final approval.
The final approval by the governing body or the planning board, as the case may be, of a plat showing a new street or the resubdivision of land along a mapped street shall expire 90 days from the date of such approval, unless within the period such plat shall have been duly filed by the owner or his agent with the county recording officer.

In Hilton Acres this court held, and the Supreme Court agreed, in a case involving a large residential development in a rural area, that the “general terms and conditions” not changeable by the municipality under the statute after tentative approval include minimum lot sizes. But in so holding we explained:

In general, then, the concept for immunity on tentative approval is geared to subdivision developments of the larger kind, where substantial investment of time, effort and money is contemplated, and the risk of capital loss is commensurate. The three-year immunity is fairly to be construed as intended to afford reasonable assurances to developers of that scope that they may safely make the kind of investment thus envisaged, after gaining a tentative planning board or municipal approval (as the case may be), without risk of major or substantial disturbance of their plans by the local authorities for the specified three-year period. To this qualified extent the statutory policy is for a period of enforced immobility of the local regulatory power relative to the particular subdivision development. [64 N. J. Super. at 291-292]

In Levin v. Livingston Tp., supra, the court considered but did not adjudicate the question of the period of time immunity from changes in general terms and conditions would extend after final approval. The intimation, however, was that the Legislature may have intended such protection for the developer until “a reasonable date after the grant” of final approval (35 N. J. at 519). The same question was again adverted to but left open in Pennyton Homes, Inc. v. Planning Bd. of Stanhope, supra (41 N. J. at 585) and in Virginia Construction Corp. v. Fairman, 39 N. J. 61, 69—70 (1962).

In Hilton Acres, Levin, Pennyton Homes and Virginia Construction, substantial residential developments with commensurate expense for improvements were involved. In the Levin and Pennyton Homes cases the court took a fairly restrictive view, favorable to the municipalities, as to the kinds of improvements which could not be upgraded by the municipality after tentative approval as “general terms and conditions.”

In LaMura, supra, against the case backdrop outlined, we held that the developer (large scale) had a reasonable time after grant of final approval to apply for building permits as against subsequent municipal upgrading of lot sizes. We avoided answering the question whether the developer had an absolute period of protection of three years from the date of tentative approval no matter how short the interval between tentative and final approval. Squarely facing that question here, we have concluded that the Legislature intended the three-year period mentioned in the statute to represent merely the outer limits of the period within which the developer to whom tentative approval is granted must apply for final approval and be protected meanwhile from changes in general terms and conditions. Since grant of final approval connotes readiness of the developer to build, he thenceforth is afforded only a reasonable time to apply for building permits, as against effective intervening upgrading of lots, not necessarily the arbitrary period of three years from grant of tentative approval, which may in a particular case be vastly excessive as against the general public interest in the normal exercise of the zoning power. The general principle of primacy the public interest in the construction of the Planning Act, stressed in the cited Supreme Court cases, e. g., Pennyton Homes (41 N. J. at 582), also conduces toward the hypothesis just stated. It is a basic principle of statutory construction that the “letter gives way to the rationale of the expression. * * * The spirit of the legislative direction prevails over the literal sense of the terms.” Alexander v. N. J. Power & Light Co., 21 N. J. 373, 378 (1956). Even specific language may be avoided to escape a result it would be “inconceivable” to think the Legislature intended. Graham v. Asbury Park, 68 N. J. Super. 256, 263 (App. Div. 1961), aff’d 37 N. J. 166 (1962).

In any event, as implied antieipatorily above, our decision hero is based on the view that the Legislature cannot reasonably be deemed to have intended either three years from tenative approval or a “reasonable time” after final approval as a period of immunity from exercise of the zoning power by the municipality in such a case as here. The literal terms of the statute do not stand in the way of our conclusion. As noted, the statute does not fix a period of immunity after final approval. Therefore, the mere circumstance that section 1.18 of the act grants certain rights on tentative approval to applicants for approval of plats showing, inter alia, “resubdivision of land along a mapped street” (presumably including this plat), does not support an argument that the statute itself guarantees any period of immunity after grant of final approval regardless of attendant circumstances.

There is another reason alternatively warranting denial to defendants of automatic protection against upgrading upon approval of tile resubdivision. The statutory scheme is based on the concept that before final approval is granted the governing body may require installation (or performance guarantee thereof) of such improvements as “street grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor’s monuments, water mains, culverts, storm sewers, sanitary sewers or other moans of sewage disposal, drainage structures” or other subdivision improvements required by the ordinance. N. J. S. A. 40:55-1.21; see also 40 :55-1.20.

Implicit in the provision that the approving body “may * * * tentatively approve a plat,” in which case there is conferred upon the applicant the right “for a 3-year period from the date of tentative approval * * * that the general terms and conditions upon which the tentative approval was granted will not be changed,” is the contemplation that the tentative approval procedure is to be used only when terms and conditions are imposed, when improvements of the character mentioned above are called for by the approving body. When, as in the present case, no such improvements are called for by the approving body, then, in our view, no statutory authority exists for a grant of tentative approval. All that is required or authorized is final approval so that the plat showing the revised lot lines may be filed. Since the only express reference in the statute to a period of immunization of a plat from change in general terms and conditions is that specified in section 1.18 upon grant of tentative approval, it should follow that no such period should ordinarily ensue consequent upon final approval in a case where separate tentative approval was not required because of absence of necessity for improvements.

The rule of “reasonable period after final approval” enunciated in LaMura was a matter of judicial construction of the statute in the light of the fact situation there presented. That fact situation, as noted above, was one of a mass residential developer, projecting the construction of hundreds of homes with attendant costly tract improvements. To upset such a developer’s plans instantly upon grant of final approval by municipal upgrading of the lot sizes inherent in the plats tentatively and finally approved by the planning board would obviously be grossly unfair to the developer and violative of the intent of the broad legislative scheme for development control. Similar large developments with attendant tract improvements were involved in all the Supreme Court eases cited above discussing the protective features of section 1.18.

As indicated, the Supreme Court has consistently sounded the theme of primacy of the public interest in construction and interpretation of the Planning Act. Here it is obvious that the municipal legislative purpose in upgrading lot sizes and dimensions of highway commercial property such as this island tract abutting highway lanes on both sides, was, at least in part, to subserve considerations of convenience and safety in relation to automotive traffic into and out of such premises. The larger the specified dimensions, the greater the potentiality for adequate and safe egress and ingress, as well as for handling of off-street parking (there is obviously no parking on this highway at any time). Because of the limited highway frontage of newly resubdivided Lot 4, as noted above, the planning board had to forbid egress into the west-bound lane, a natural course of egress for restaurant customers going west. It is clearly inferable from the evidence taken by the board of adjustment that use of defendants’ tract as a unitary whole would eliminate the need for the limitation imposed by the board and greatly promote the safe use of the property.

We emphasize the particularly salutary purpose and object of the zoning revision in this case to demonstrate the incongruity of a result which would insulate the defondantsproperty owners from such improved standards of safety for no better reason than that they had previously decided to have their tract divided into two lots in place of the former three, and that the technical requirements of the planning act and ordinance required planning hoard and governing body approval to validate such resubdivision against the future possibility of a sale of either of the lots.

We do not here hold that the “reasonable time” rule of LaMura is necessarily inapplicable to small as well as large subdividors or to any “resubdivision of land along a mapped street.” One can conceive oí the possibility of situations where attendant improvements required of the developer by the local agencies or other attendant equitable circumstances might appropriately call for some relief against precipitate municipal disturbance of the developer’s plans after final approval, either on the basis of the “reasonable time” rule of LaMura or one or another of the halance-of-equities or estoppel principles developed in the Morris, Gruber or Tremarco eases, cited above. We decide only that for the reasons stated above none of those principles apply here to relieve these defendants from the effect and operation of the zoning revision of 1968.

Plaintiffs have made several additional arguments against the result reached below. We do not decide them in view of the conclusions reached.

Although we reverse, defendants are in all fairness entitled to be remanded to the board of adjustment for a determination on their original application for a (c) variance, which was fully heard before the board decided the matter on the purely legal basis we have here held erroneous. Eurther hearings will be in the discretion of the board. The court retains jurisdiction for the limited purpose of considering directly any review which may be sought by the party aggrieved by the actions of the board of adjustment on remand. R. 2:91(b). Notice of intention therefor shall be filed within 15 days after such action.

Reversed; no costs.

       “ [Final approval] contemplates that a subdivider has decided to go ahead and that he is ready to proceed promptly with complete development and building construction at least in the section for which he seeks such approval.” Levin, supra (35 N. J. at 513).


source: Caselaw Access Project

author: Halpern, J. A. D.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES E. BROWN, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 2, 1971
    Decided February 16, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. John F. Richardson, assigned counsel, argued the cause for appellant.

      Mr. John J. Trombadore, Assistant Prosecutor, argued the cause for respondent {Mr. Michael R. Imbriani, Somerset County Prosecutor, attorney; Mr. Trombadore, of counsel and on the brief).
   The opinion of the court was delivered by

Halpern, J. A. D.

After a trial by jury, defendant was convicted of receiving a stolen I. B. M. electric typewriter. He was sentenced to a suspended State Prison term of 2-3 years, placed on probation for 3 years, and fined $500. He appeals from the judgment of conviction.

The jury could find from the State’s proofs that on January 8, 1967 the offices of the C. R. Bard Co. in Bridge-water Township, Somerset County, were burglarized and approximately $5,000 worth of office equipment was stolen, including the typewriter later found in defendant’s possession.

Defendant admitted possession of the typewriter but denied knowing it had been stolen. In explaining how he obtained possession he testified:

Q Mr. Brown, would you kindly tell this Court and jury specifically how you acquired this IBM typewriter.
A Well, I was coming down Old York Road up in Bradley Gardens. It was in the early hours of the morning and there was a fellow with a flat tire there. There was two fellows and they had these machines in the ear and they didn’t want to leave them on Old York Road overnight in their car. They asked me to hold them until the next day.
I gave them my room where I was living and the address. I dropped them off at the diner and I haven’t seen them from that day to this.

When the men did not return within two months he concluded the machines must have been stolen, so he stored them at his father’s home in Point Pleasant. He admittedly loaned the typewriter in question to his daughter during Christmas of 1967.

The issues presented on this appeal revolve around the testimony of his former wife, Columbia Brown. She testified that she married defendant in 1945 and that two children were born of the marriage, Marion and Robert. They separated in 1959 and had not lived together since that date. Prior to December 1967 when defendant visited with Robert at her home, she overheard defendant tell Robert that one Dominick Angelone had some typewriters which defendant was to sell or get rid of. About Christmas of 1967 she saw defendant give, or loan, the typewriter in question to her daughter Marion. On March 4, 1968 a judgment nisi for divorce from defendant was entered, final judgment being entered on June 5, 1968. The trial in the instant case commenced on June 9, 1969.

Columbia’s testimony as to the conversation was admitted over the objection of defendant. He contends the court erred because (1) under New Jersey Evidence Rule 23(2) Columbia was not competent to testify against him because they were still married when she overheard the conversation with Robert, and (2) New Jersey Evidence Rule 28 prevents hex from disclosing a communication made in confidence by him at her home. The issues raised are novel in New Jersey. We have concluded that Columbia’s testimony was properly admitted.

Evidence Rule 23(2), N. J. S. A. 2A:84A-17(2), provides :

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both eonsent, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is the complainant.

Evidence Rule 23(2) specifically deals with the competency of one spouse, in a criminal case, to testify against the other. Except for the three exceptions provided for, it bars a spouse from testifying if they are married when the testimony is offered. As was succinctly stated in United States v. Ashby, 245 F. 2d 684, 686 (5 Cir. 1957), "A divorce terminates the incompetency of a wife to testify against her husband in a criminal case, except as to confidential matters, even though her knowledge was acquired during the period of the marriage.” Significantly, Rule 23(2) makes no provision for the privilege to survive a dissolution of the marriage, as is the case with Evidence Rule 28. The philosophy underlying Rule 23(2) was carefully considered by Justice Francis in State v. Briley, 53 N. J. 498 (1969). He summarizes it thusly:

It is the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at a trial. Rule 7 of the New Jersey Rules of Evidence; N. J. S. 2A:84A-16. Privileges expressly granted to persons to refuse to testify or to prevent another from testifying are exceptions to that policy. See Rules 23-32, 34, 36-40; N. J. S. 2A:84A-17 to 32. Since rigid adherence to the letter of the privileges promotes the suppression of truth, they should be construed and applied in sensible accommodation to the aim of a just result. In view of the obvious policy of the law to enlarge the domain of competency of witnesses and to adapt rules of evidence to the successful development of the truth, competency should be regarded as the rule and incompetency as the exception. This approach is plainly applicable to the so-called marital privilege. See Funk v. United States, 290 U. S. 371, 379-382, 54 S. Ct. 212, 78 L. Ed. 369 (1933) ; Shores v. United States, 174 F. 2d 838, 11 A. L. R. 2d 635 (8th Cir. 1949) ; Wyatt v. United States, supra, 362 U. S. 525, 80 S. Ct. 901, 4 L. Ed. 2d 931; Note, 38 Va. L. Rev. 359 (1952). It follows therefore that when a greater public interest is served by recognizing the competency of one spouse to testify against the other and no violence is done to the privilege as expressed in a statutory or judicial rule of evidence, the testimony should be received, [at 506]

Since the marriage between defendant and Columbia had been legally dissolved when she testified, and no matrimonial harmony remained to be preserved, we see no public policy reason to bar Columbia’s otherwise competent testimony because of Rule 23(2).

Evidence Rule 28, N. J. S. A. 2A:84A-22, provides:

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication. [Emphasis added]

When the State offered Columbia’s testimony Judge Leahy heard legal argument by counsel out of the jury’s presence. He made the preliminary determination that the communication between defendant and Robert, which was overheard by Columbia, was not made to her nor was it made in confidence. Such preliminary determination was the proper procedure to follow. State v. Anderson, 35 N. J. 472, 487, 488 (1961); People v. Dudley, 24 N. Y. 2d 410, 301 N. Y. S. 2d 9, 12, 248 N. E. 2d 860 (Ct. App. 1969). We have reviewed the record and are in accord with his determination that, under the facts in this case, Rule 28 created no bar to Columbia’s testimony. People v. Dudley, supra.

To summarize, we hold that Rule 23(2) deals only with competency to testify in criminal cases between spouses, and is inapplicable if the parties are divorced when the testimony is offered even though the communication was made while married. Buie 28 makes communications between spouses privileged only if made to the spouse in confidence. If the privilege attaches under Rule 28, it survives a subsequest divorce, unlike competency under Rule 23(2). As indicated in Briley, supra, the latter rule has fallen into disfavor, but the distinctions between them survive. See McCormick, Evidence § 66 at 144-145 (1954); 2 Underhill, Criminal Evidence (5th ed.), § 341 at 867.

Affirmed.


text:
    WILLIAM McCULLOUGH TRANSPORTATION COMPANY, PETITIONER APPELLANT, v. DIVISION OF MOTOR VEHICLES, BUREAU OF MOTOR CARRIERS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 1, 1971
    Decided February 17, 1971.

      Before Judges Conrord, Kolovsky and Carton.

      Mr. Bichará B. Catenacci argued the cause for appellant (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys) .

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen SMllman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Appellant, a motor carrier subject to the Motor Carriers Road Tax Act of 1963 (L. 1963, c. 44; N. J. S. A. 54:39A-1 et seq.), appeals from a denial by defendant, administrator of the tax, of its claim for refund of $37,491.63. This amount represented payment by it in 1967 to Connecticut, Maryland and Pennsylvania of road use taxes assessed by those states for various years from 1962 to 1967 measured by motor fuel used by its vehicles on highways in those states on which motor fuel sales taxes had been paid by it in New Jersey pursuant to the Motor Euel Sales Tax Act (L. 1935, c. 319, as amended; N. J. S. A. 54:39-1 et seq.).

Of the total amount mentioned, $6.052.68 represented the New Jersey taxing period prior to October 1, 1964, during which the statute contained no provision for refund on account of taxes paid other states. Eor that reason there was no statutory basis upon which defendant could have made a refund of that sum. But effective October 1, 1964 the road tax act was amended by L. 1964, c. 258, so as to provide, by what is now N. J. S. A. 54:39A-8 (section 8 hereinafter), for a refund for similar taxes paid to another state “on or by reason of the use or consumption therein within such carrier’s reporting period of motor fuel attributable to purchase in this State * * The remainder of the $37,491.63 claimed was for reporting periods subsequent to October 1, 1964, but defendant rejected those claims because appellant had not filed the claims “within 4 months following the end of the [respective] reporting period[s],” as expressly required by section 8.

The instant litigation came about as a result of claims in 1967 by the tax authorities in the states referred to that .audits of appellant’s returns for the years mentioned had disclosed additional amounts of road use taxes due those states in the aggregate sum stated. When appellant paid the added assessments it sought refunds from defendant. These were rejected, as just indicated.

Our determination of the issues presented will be simplified by considering separately the different portions of the refund claim in question.

As to the $6,052.68 claim

While appellant’s precise position as to this portion of the claim is not too clear, it is, as best we can understand it, that the absence of a refund provision in the statute prior to October 1, 1964 for road use taxes paid in other states rendered the statute illegal as imposing “double taxation” and an unconstitutional burden on interstate commerce.

To appraise the contention one must examine the relationship between the motor fuel sales tax act and the road tax act, as the latter stood prior to the 1964 amendment. The motor fuel sales tax act imposes a tax on every gallon of motor fuel sold or used in this state. N. J. S. A. 54:39-27. The tax is passed on to the purchaser. “Use” includes transfer of fuel by a distributor into a motor vehicle. N. J. S. A. 54 :39-8.

The road tax act as first enacted provided that every motor carrier, as defined in the act (including appellant), should “pay a road tax equivalent to the rate per gallon of the motor vehicle fuel tax which is currently in effect, calculated on the amount of motor fuels used in its operations within this State.” N. J. S. A. 54:39A—3. N. J. S. A. 54:39A-6 provided that the amount of motor fuels used in the State should “be computed to be such proportion of the total amount of such motor fuels” used in the carrier’s “entire operations within and without this State as the total number of miles traveled within this State bears to the total number of miles traveled within and without this State.” The Director of the Division of Motor Vehicles was authorized, by N. J. S. A. 54:39A—5, to impose the tax on a quarterly basis, starting with, the quarter from June 1 to August 31, 1963. If the motor carrier purchased any motor fuel in New Jersey during a given quarter, the amount of tax paid thereon (pursuant to N. J. S. A. 54:39-27) was allowed, under section 8, as a credit against the road tax imposed by the 1963 act (N. J. S. A. 54:39A—3). Section 8 also provided that if

the amount of the credit herein provided to which any motor carrier is entitled for any reporting period exceeds the amount of the [road] tax for which such carrier is liable for the same reporting period, such excess of the credit shall, under such regulations as the director shall prescribe, be allowed as a credit on the [road] tax for which such carrier would be otherwise liable in any of the succeeding 3 quarters.

The statute failed, however, to provide adequately for the carrier who consistently bought more motor fuel in New Jersey than he used within the State. Eor such a carrier, the amount of credit for motor fuel taxes paid to which he was entitled would exceed the amount of the road tax levied against him in each quarter, and the credit would consequently become nugatory to the carrier. This led to the 1964 amendment of the act discussed later herein.

Appellant contends that the interacting effect of the motor fuel sales tax act and of the road tax act, as applied to motor carriers, constituted both statutes in combined effect simply a taxing imposition on the use of the highways. From that premise it argues that the failure of the road tax act prior to October 1964 to allow appellant credit for road taxes paid by it in other states on fuel purchased in New Jersey but used in those states caused the levy to become an illegal double tax and an unconstitutional burden on interstate commerce.

We do not agree. The two tax acts are separate and distinct and cannot be confused in operation and effect merely because the Legislature for reasons of policy decided to allow credits against the one for amounts paid under the other. Insofar as appellant in the first instance paid motor fuel taxes on fuel purchased here, the tax was free of constitutional defect notwithstanding the fuel would be used in part outside the State. The taxing incident consisted of sale here and/or transfer of the fuel into motor vehicles situated in this State. This conclusively validates the fuel sales tax here as against commerce arguments. See Nashville, Chattanooga & St. Louis Railway Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. Ed. 730 (1933); Edelman v. Boeing Air Transport, Inc., 289 U. S. 249, 251-252, 53 S. Ct. 591, 77 L. Ed. 1155 (1933).

As to the incidence of the road tax act on appellant, that tax was imposed solely for intrastate use of our highways by its vehicles operated in the course of its business as a motor carrier, and appellant does not and could not successfully attack it on constitutional grounds. Much less can it do so when the statute credited its obligation for that tax with the entire amount of its motor fuel taxes paid in this State.

It is clear that appellant’s grievance against the pre1964 road tax act consists not in the affirmative taxing provisions of the act but in the failure of the act to relieve it for road taxes paid elsewhere in respect of fuel bought here and used to propel vehicles there. But this is not an appropriate basis for a constitutional attack on our statute. Taxes validly imposed in this State are not rendered invalid by what other states do in the exercise of their own taxing power. See the rejection of a similar contention in Commonwealth v. White Star Lines, Inc., 20 Pa. D. & C. 2d 374 (Pa. Cty. Ct. 1959). Thus, neither our fuel sales tax nor our road use tax, nor the combination thereof, constituted a forbidden burden upon interstate commerce or a double tax on the same property. Cf. Central R. Co. v. Pennsylvania, 370 U. S. 607, 82 S. Ct. 1297, 8 L. Ed. 2d 720 (1962).

As to the Balance of the $37,491.63 Claim

As noted above, the Legislature in 1964 amended section 8 of the road tax act to allow, as an alternative to the credit for motor fuel taxes paid, theretofore allowed by the act, a refund for such road taxes as had been paid to another state by reason of the use or consumption on its highways of motor fuel attributable to purchase in this State. But the section states that “An application for refund shall be made within 4 months following the end of the reporting period.”

Considering the problem simply as a matter of statutory construction, we are clear that the Legislature did not intend to allow entertainment of section 8 refunds after passage of the four-month period following the reporting period. The intent that this limitation should be mandatory is manifested by the provision in N. J. S. A. 54:39A-19, dealing generally with claims for refunds under the act and allowing two years after payment of the tax therefor, that it not be applicable to section 8 claims for refund. We do not accept appellant’s argument that this is an unreasonable construction of the intent of the act in relation to deficiency claims on out-of-state taxes asserted long after passage of the four-month local reporting period, as here. The Legislature could reasonably contemplate that taxpayers should correctly estimate their tax obligations to other states in their original returns and decline to allow claims for refunds based upon much later reassessments elsewhere occasioned by faulty original returns by the taxpayer to such states. We have no occasion to express any view on the reasonableness of the refund period fixed—that was a policy matter for the judgment of the Legislature.

Limitation periods for claims for refunds are common administrative provisions found in tax legislation and justified by the need for predictability of revenues by public agencies. Cf. Wm. Eisenberg & Sons, Inc. v. Martin, 120 N. J. L. 348 (Sup. Ct. 1938).

Appellant’s alternative position, that the 1964 amendment was adopted in order to assure the constitutionality of the act and that therefore section 8 should be liberally construed to allow refunds for payments of taxes elsewhere when such reassessments are imposed later than the expiration of four months after the end of the local reporting period, is unfounded. The “Statement” accompanying the bill which was enacted as L. 1964, c. 258, demonstrates that the legislative purpose was to encourage purchase of fuel requirements by motor carriers in New Jersey, as opposed to the disieouragement of such purchases under the previous legislation which did not allow credits for taxes paid in other states on road travel there but attributable to fuel purchased and tax-paid here.

The road tax act not having been unconstitutional, as claimed by appellant, even prior to the 1964 amendment, it was a fortiori not unconstitutional subsequent thereto, and this notwithstanding the strict construction of the limitation period for section 8 refunds which we have held above to represent the legislative intent.

We note that review of the action of defendant should have been sought before the Division of Tax Appeals pursuant to N. J. S. A. 54:39A-17. However, without intending to set a precedent, we have entertained this appeal to settle the legal question presented expeditiously.

Affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MORRIS A. GUIENDON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 8, 1973
    Decided February 17, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Bernard V. Kelly argued the cause for appellant (Messrs. Bhachleton and Kelly, attorneys).

      Mr. Remo M. Croce, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   Per Curiam.

Plaintiff appeals from a County Court judg-

ment sentencing him as a second offender under the drunken driving statute, N. J. S. A. 39:4-50(a). The court assessed no fine, but imposed $25 costs and a 90-day county jail sentence. Sentence has been stayed pending the outcome of the appeal.

Defendant’s first arrest for drunken driving was on December 28, 1969. Before he could be tried on that charge he was again arrested for drunken driving on February 6, 1970. He was then tried on the first charge on February 19, 1970 and found guilty. Trial on the second charge was held on April 27, 1970, and again defendant was found guilty. He was then sentenced as a second offender.

Defendant first argues that he could not bo sentenced as a second offender because the second violation occurred before sentence was imposed for the first offense. He relies on our opinion in State v. Johnson, 109 N. J. Super. 69 (App. Div. 1970), where we dealt with the Uniform Narcotic Drug Law, N. J. S. A. 24:18-1 et seq. We there held that a defendant convicted of violating that law could not be punished as a second offender under N. J. S. A. 24:18-47(c) (2) when the second violation occurred and the indictment based thereon was entered prior to his first conviction under the act. Here, however, we deal with the drunken driving statute, which is quite differently worded and which, in State v. Deckert, 69 N. J. Super. 105 (Cty. Ct. 1961), was construed to permit conviction as a second offender in circumstances such as are here present.

We considered the effect of Dechert in the Johnson case because we were sensitive to its possible impact upon our own construction of the Uniform Narcotic Drug Law, and held that the drunken driving statute construed in that ease could not control the Johnson situation. However, the rationale of Dechert and the language of N. J. S. A. 39 :4-50(a) are controlling. The statute first provides that a drunken driver shall be subject, “for the first offense,” to a fine of $200 to $500, imprisonment for 30 days to 3 months, or both, and suspension of his driver’s license for 2 years from the date of his conviction or until he reached 21, whichever was the greater period of time. The statute then goes on to state that, “for a subsequent violation,” imprisonment shall be for three months and the driver’s license forfeited for ten years — mandatory language. The use of the words “for a subsequent violation” distinguishes the drunken driving statute from the one considered in Johnson.

Accordingly, we affirm the conviction.

Defendant’s only other argument is that under the circumstances of his case, imprisonment for 90 days would amount to cruel and unusual punishment, in violation of his constitutional rights. The basis for this contention is defendant’s claim that he suffers from claustrophobia. Jail, he says, would have deleterious effects upon him, for he cannot tolerate a closed space. The only proof advanced in support of this claim was the testimony of Dr. Edward Dengrove, a neuro-psychiatrist, who examined defendant one month after he had been found guilty on the second charge of drunken driving. There was but a single examination, and the doctor’s diagnosis must have been based almost entirely on what defendant told him of his subjective complaint.

In his letter opinion dealing with the argument that the mandatory sentence constituted cruel and unusual punishment because of defendant’s claimed claustrophobia, the judge observed that there are, of course, varying degrees of mental illness and that both medical and psychiatric attention were available at either the county jail or at the neighboring State Hospital at Marlboro, should the same be required. He concluded that the three-month jail sentence did not amount to cruel and unusual punishment.

In affirming the sentence we emphasize that if at any time there should be any manifestation of genuine claustrophobia, the authorities in charge of the institution where defendant is confined will at once call for all medical and psychiatric services available to the Department of Institutions and Agencies in connection with its administration of correctional institutions.

The judgment is affirmed.


author: Fritz, J. S. C.

text:
    JUNE C. GULICK, PLAINTIFF, v. JOHN GULICK, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided February 9, 1971.

      Mrs. Regina H. Meredith argued the motion lor plaintiff (Messrs. Meredith, Meredith and Chase, attorneys).

      Mr. Daniel A. O’Donnell, Jr. argued the motion lor defendant (Messrs. McLaughlin, Dawes & Abbotts, attorneys).
   Fritz, J. S. C.

Plaintiff, by motion, seeks to modify provisions of a judgment nisi for divorce with respect to support provisions and provisions made therein for respective claims of dependency in connection with federal income tax returns. It appears uncontroverted that the provisions in these respects originally appearing in the judgment nisi of December 14, 1966, and concerning which a final judgment was entered on March 15, 1967, were the result of agreement between the parties at that time after arms-length negotiation.

While there is no question that this court has continuing jurisdiction to modify support as provided in a divorce judgment, N. J. S. A. 2A:34-23, some question does appear as to whether such modification is to be based upon a consideration of the element's which ordinarily enter into the picture (see Turi v. Turi, 34 N. J. Super. 313, 322-323 (App. Div. 1955)), as they exist at the time of the application for modification, or whether such modification can result only from a demonstration of altered circumstances subsequent to the original judgment. Solution to this problem is both helped and hindered by an apparent conflict in judicial expressions concerning modification of support provisions in a prior judgment.

The rule was long thought to be that the party who seeks such a modification has the burden of establishing that changed circumstances call for the relief sought. Boorstein v. Boorstein, 142 N. J. Eq. 135 (E. & A. 1948). Only the unofficially reported determination of Advisory Master Van Winkle in Cohen v. Cohen, 15 N. J. Misc. 666 (1937), appears to have suggested to the contrary. With an awareness of the injunction of Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961), that “Trial judges are privileged to disagree with the pronouncements of appellate courts; the privilege does not extend to non-compliance,” I am of the judgment that dictum in Martindell v. Martindell, 21 N. J. 341, 353 (1956), suggesting that Gohen may prevail over Boor stein in appropriate circumstances, not only permits but compels me to view the matter as though a conflict in appellate pronouncements exists. Martindell advises:

* * * Where the original alimony order was preceded by and was based upon a full and fair judicial inquiry the doctrine [Boorstein] may have considerable merit, for neither the courts nor the parties should be heavily burdened with a belated re-examination of the original facts and the justice of the terms of the original order entered thereon. Where, however, there was never any such judicial inquiry, the doctrine may have much less force. * * *.

In the motion before me, a new element for consideration appears, to wit, the fact that the property aspects of the prior judgment were a matter of agreement on arms-length negotiation. Thus, we have a novel problem: whether, on such an application, plaintiff must demonstrate a change of circumstances since the original judgment, or, on the other hand, may demonstrate a need for modification on the basis of things as they are now.

It seems to me that the principles involved in the law as expressed in the cases cited above require first, in any case, a determination by this court as to whether there was “a full and fair judicial inquiry” at the time of the original judgment. If there was, a demonstration of changed circumstances is required. If there was not, the question “should be decided in accordance with the very right of the matter at the time it is before the court for disposition.”

The rationale of this proposition as a general statement of law is obvious and, I believe, profound. If the parties have had an opportunity .to demonstrate the circumstances upon which there was a determination and “the justice of the terms of the original order” were or should have been apparent to the judge then sitting, then a belated examination supplementary thereto will not be permitted. If they have not had such an opportunity or have not availed themselves of it, absent other equities, simple justice requires the full examination.

Applied to the instant matter, the inquiry becomes one of whether an arms-length negotiated agreement is the equivalent of “a full and fair judicial inquiry,” as that phrase is used in Martindell. I believe it is the equivalent. The end product of such an inquiry is the informed judgment of the judge based on a full presentation of the facts toward the goal of a fair adjudication of support. The significant component is the availability of ali facts. Where the parties agree after arms-length negotiation, and the court’s approval by incorporation into a judgment appears, I think it can be fairly presumed that the totality of facts was available. To permit a court to be asked on the application of either one of the litigants at some later time to reexamine the facts which they and the court have already considered, toward the end of adding a supervening judgment to the parties’ own considered determination, seems to me to be wrong in several respects. First, it fosters a sort of second-bite-from-the-apple philosophy. Either party may consciously accept a voluntary determination of support with confidence that if things do not work out right, he can start all over again. Second, it imposes upon a trial judge the obligation of making a determination as to support, not in the relatively uncluttered arena of a first presentation of the facts, but rather, influenced, subconsciously or otherwise, by the support considerations which the parties have voluntarily assumed after full fact finding, as it were. Third, it encourages something less than the best judgment in the litigants, at the important moment of the divorce, to bring to bear ali those factors which might be the subject of proper consideration with regard to the matter of support. Finally, as noted in Martindell, it inflicts on the courts and the parties a heavy and unnecessary burden of belated re-examination.

If the rule be as I believe it to be fox the reasons set forth above, then, as applied to this ease, plaintiff has the burden of demonstrating a change of circumstances since the entry of the judgment nisi sufficient to warrant the relief she seeks. It is, therefore, upon this postulate that I have considered the factual issues presented. Eor plaintiff to prevail upon her application for an increase in support, she bears the burden of demonstrating, by “clear proof,” that circumstances have so altered since the entry of the judgment nisi that the relief she seeks is warranted. BoorsUin, supra. I do not believe that this burden has been here sustained.

As far as change of circumstances is concerned, plaintiff’s proofs on this motion demonstrate only her assertion that cost of living, including income taxes, has increased since the time of agreement as to support and the entry of the judgment nisi, and that she is thereby required to bear a disproportionate share of the support burden. I do not believe this to be the type of “changed circumstances and new facts” which Boorstein contemplates. Were the rule to be to the contrary, except in the most unlikely event of a period of unwavering stability in the economy, one party or the other would be in a position frequently and continuously to seek a modification. If the cost of living went up, the application would be by the supported. If it went down, it would be by the supporter. In addition to this practical view, there is no reason why the parties should not be presumed to have considered at the time of entry of judgment the likelihood of general economic change, a real fact of life in our present economy. To permit relief on this basis would be no different from sanctioning a modification of a prior agreement solely on the basis that the support sought and agreed upon proved to be less adequate when it arrived than it did when the agreement was entered into.

Notwithstanding all of the foregoing, I acknowledge the rule of Ramhorst v. Ramhorst, 138 N. J. Eq. 523 (E. & A. 1946), where it is said (at 526) that “The right of either party to make application to the Court of Chancery at any time for a just variation of the terms of an existing order for alimony and support is inherent in our matrimonial procedure,” and this despite the semantic war between Boorstein and Cohen and the uneasy truce of Martindell. I am certain, as well, that the conscience of equity will not permit present needs of children to be limited by the agreement of the parents. Suffice it to say that on the present motion I have concluded, all things considered, that I do not offend these rules. Proofs that the needs of the children are being limited are not present. Indeed, plaintiff’s principal claim is simply that she is bearing a disproportionate burden.

Plaintiff has, for the foregoing reasons, failed to sustain her burden on this motion, and therefore the motion must be denied. It is axiomatic that such denial is without prejudice. Pursuant to the statute and the eases, the respective obligations relating to support are dynamic and may be the subject of further motion when the circumstances and facts are demonstrably so altered that they may justify the relief sought.

No counsel fees or costs to either party on the motion.