13 A.2d 847 | N.J. | 1940
This writ of certiorari brings up for review the conviction of the prosecutrix on May 11th, 1939, by the Recorder's Court of the borough of Monmouth Beach for the violation of the zoning ordinance. *66
It appears that the ordinance in question was adopted by the borough on September 9th, 1930, and amended October 25th, 1932. On March 1st, 1938, the prosecutrix became the owner of premises located in what the ordinance referred to as "residence Zone A." On the premises was an old residence property which had been built for about fifty years and which had been unoccupied for about nine years. The prosecutrix without making any structural change or alterations in the building established it as a hotel and has conducted it as such since.
The defendant borough contends that the ordinance prohibits said use and also prohibits a change in the use of any building until a certificate of approval shall be obtained from the proper borough officer which she did not obtain.
Under date of May 4th, 1939, complaint was made against prosecutrix for violation of sections 12 and 17 of the ordinance charging the two offenses above described. She plead not guilty and demanded a trial by jury. She was convicted and sentenced to pay a fine of $200.
The argument on behalf of the prosecutrix is that the conviction should be set aside for two reasons. First, because under the facts there was no violation of the ordinance and secondly, because the ordinance was invalid for the reason that it had not been published in a qualified newspaper as required by statute. N.J.S.A.
Section 17 prohibits a change in the use of any building without first obtaining a certificate of occupancy from the building inspector which certificate shall be issued if the proposed use is in conformity with the ordinance. There was clearly a violation of this section because no such certificate was issued or even applied for. The property was purchased on March 13th, 1938, and its use was immediately changed to hotel purposes. The prosecutrix argues that a compliance with this provision was impossible because there was no one in fact holding office as building inspector. Not so. The proofs are that the mayor was duly acting as such building inspector. Moreover, this point was not raised at the trial and she may not now be heard on it.
Nor do we find any merit to the second point argued. This ordinance had been in effect for over nine years and presumably citizens had conformed to its provisions and their status as property owners became fixed accordingly. The prosecutrix recognized the ordinance under date of February 15th, 1938, when she caused a letter to be sent the defendant borough stating that she had purchased the property, that it was located in a zone wherein business was prohibited and applying "for a special exception to the terms of the zoning ordinance permitting the above mentioned premises to be *68
licensed for a first class hotel." She did not attack the validity of the ordinance. Assuming that the ordinance was not published in a qualified newspaper such irregularity was merely procedural and the prosecutrix under these facts and circumstances was guilty of laches which bars her right to complain. The general rule is stated in 43 C.J. 526, § 812, as follows: "Subject to the limitation that non-compliance with merely formal requirements in the manner of enacting an ordinance is generally considered by the courts as no ground for declaring it void." Cf. Noe v. West Hoboken,37 Atl. Rep. 439; Ninth Street Improvement Co. v. Ocean City,
For these reasons the conviction is sustained and the writ dismissed, with costs.