Abel v. Board of Works of City of Elizabeth

• Decision Date: 31 October 1960
• Docket Number: No. A--511,A--511
• Citation: 63 N.J.Super. 500,164 A.2d 764
• Parties: Dr. Henri E. ABEL, John Szostek and Joseph Butt, Plaintiffs-Appellants, v. BOARD OF WORKS OF CITY OF ELIZABETH, Mayor of the City of Elizabeth, the Cityof Elizabeth, Building Inspector John T. Benesch of the City of Elizabeth,Visiting Nurse Ass'n or Eastern Union County, Union County Trust Company, UnionCountySavings Bank, and Jersey Mortgage Company, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 500

63 N.J.Super. 500

164 A.2d 764

Dr. Henri E. ABEL, John Szostek and Joseph Butt, Plaintiffs-Appellants, v. BOARD OF WORKS OF CITY OF ELIZABETH, Mayor of the City of Elizabeth, the Cityof Elizabeth, Building Inspector John T Benesch of the City of Elizabeth,Visiting Nurse Ass'n or Eastern Union County, Union County Trust Company UnionCountySavings Bank, and Jersey Mortgage Company Defendants-Respondents.

No. A--511.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 17, 1960.

Supplemental Briefs Submitted Oct. 27, 1960.

Decided Oct. 31, 1960.

Joseph Butt, Elizabeth, for appellants.

H. Russell Morss, Jr., Elizabeth, for respondents Union County Trust Co., Union County Savings Bank and Jersey Mortgage Co. (O'Connor, Morss & O'Connor, Elizabeth, attorneys).

Before Judges GOLDMANN, CONFORD and KILKENNY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs appeal from a Law Division judgment dismissing their proceeding in lieu of prerogative writs attacking the validity of an amendment to the Elizabeth zoning ordinance.

I.

The Elizabeth Board of Public Works is, under the city charter and appropriate legislation, the municipal legislative body insofar as zoning is concerned. On July 16, 1958 Richard R. O'Connor, Esquire, made application to the Board on behalf of the Union County Trust Company, Union County Savings Bank, Jersey Mortgage Company and others to rezone from Residence C to Business A classification an area of some 8 1/2 acres adjoining the business center of Elizabeth. The application was accompanied by copies of a survey prepared by Luster & Luster, licensed professional engineers and land surveyors. This survey, in the form of a large map, showed the area to be rezoned in heavy outline, as well as the surrounding area, in some detail, including streets individual plots, ownerships and distances. The 8 1/2-acre area with which we are concerned is bisected in a north-south direction by Union Avenue, one block of which, between Morris Avenue and Prince Street, is to be rezoned. Plaintiffs live on the eastern side of this block.

The application and survey map were presented to the Board of Public Works at its regular meeting on July 24, 1958 and, after consideration by it, referred to the Elizabeth Planning Board. The Planning Board requested its consultant, I. Candeub & Associates, to study the matter and report. The consultant did so and on August 26, 1958 submitted a memorandum which recommended, on the basis of the Elizabeth Master Plan and the character of existing and recent development in the general area, that the specific area under consideration be rezoned from Residence C to Business A.

The memorandum noted that the surrounding area was zoned Business B, except for adjoining blocks to the north zoned Residence A, B and C, and Business A. Single and two-family residences are permitted in Residence A and B zones, respectively. These are also permitted in a Residence C zone, as are multiple-family dwellings, including apartments and apartment hotels. The surrounding Business B zone permits almost any type of commercial establishment and a limited amount of light industrial use. Under the existing zoning ordinance, the following uses are permitted in a Business A zone (the rezoning requested for the area in question): any use permitted in a residence zone, retail stores, banks and fiduciary institutions, barber shops, offices, studios, restaurant or lunch counters, telephone exchanges, art galleries, and undertakers and embalmers' establishments. The consultant's memorandum noted that in the area considered for rezoning the predominant use on the easterly side of Union Avenue is single and two-family dwellings, the majority of which are in good or fair condition. On the westerly side are a Knights of Columbus clubhouse with parking, a 32-family apartment house, an old house recently purchased by the Visiting Nurse Association of Eastern Union County (this was torn down, and the lot is now vacant), a large single-family residence containing a doctor's office, and a recently abandoned public school which the city is considering using as a City Hall Annex. This description by the consultant of existing uses is confirmed by the testimony taken in the Law Division, except that there should be added to the description of uses on the westerly side of Union Avenue a dwelling with a real estate broker's office on the first floor.

The surrounding land uses to the south, east and west of the area are concededly commercial in nature. That part of Prince Street, which bounds the area to be rezoned on the north, contains two office buildings converted from residences, a single-family residence and doctor's office, and a church with its parking lot and playground, in the block between Westminster Avenue on the east and Union Avenue; between Union Avenue and Irvington Avenue to the west there are a church, a vacant lot, and a firehouse, all in a Business A zone.

The consultant's memorandum further noted that the elizabeth Master Plan, which was adopted by the Planning Board of the city on December 27, 1955, proposed development of the area in question for general commercial usage. The area is contiguous to what the Master Plan map shows as the central business district of the city.

It thus appears from the memorandum, as well as the testimony, that the area to be rezoned is surrounded on three sides by commercial uses; on the fourth side, the north, there is an immediately adjacent strip now in commercial, church and public use, beyond which lies a residential area of medium density.

On August 26, 1958 the Planning Board considered the rezoning request, the survey map accompanying it, and the consultant's report, and unanimously recommended to the Board of Public Works that the area be rezoned from Residence C to Business A. The recommendation was received by the Board of Public Works at its regular meeting on September 4, 1958. At its request Mr. O'Connor had Luster & Luster prepare a description of the area to be rezoned, based on the survey map previously submitted. We have examined this description and find that it precisely delineates the area bounded by a heavy line on the map. An amendatory zoning ordinance containing this description, and rezoning the area from Residence C to Business A, was then prepared and introduced. The Board of Public Works held a public hearing on the ordinance at its meeting of September 25, at which time it heard plaintiffs' present attorney and several Union Avenue residents in opposition, as well as Mr. O'Connor and several representatives of the applicant banks and of the Visiting Nurse Association in support of the rezoning. At the conclusion of the hearing the Board unanimously adopted the ordinance.

Plaintiffs filed their complaint on November 7, 1958, alleging that the amendatory ordinance constituted an abuse of discretion and was arbitrary, unreasonable and capricious; the Board of Public Works had prejudged the case, failed to hold a Bona fide hearing, and was prejudiced in favor of the applicants; the ordinance violated R.S. 40:55--32, N.J.S.A., because not in accordance with a comprehensive plan or designed for one or more of the various purposes set out in the statute; the ordinance was illegal because it constituted spot-zoning; and, finally, the action of the Board of Public Works violated the doctrine of Res adjudicata. Defendant applicants filed an answer and the matter was pretried, plaintiffs contending that the action of the Board of Public Works 'was arbitrary, capricious, unreasonable, illegal and not in conformity with N.J.S.A. 40:55--32 (and) constituted spot-zoning.'

After two days of testimony and a personal inspection of the subject area the Law Division Judge concluded that none of the contentions raised by plaintiffs was valid. He found as a fact that the rezoned area was located in the central business district and surrounded on three sides by land zoned for business use--'a small island located in the central business district.' He concluded that plaintiffs' proofs did not overcome the presumption in favor of the amendatory ordinance by a clear showing that it was unreasonable, arbitrary or capricious; in fact, the greater weight of the evidence was to the contrary. The ordinance did not constitute spot-zoning, was in accordance with the Elizabeth Master Plan, and represented good municipal planning.

Plaintiffs thereafter moved for a new trial on the ground that the trial judge was prejudiced against their attorney. The motion was denied and the judgment here under review entered. A further attempt to show that the judge had been prejudiced came to nothing. Although this aspect of the case is not raised in the brief, plaintiffs have entirely improperly included in their appendix material related thereto, and we therefore observe, in fairness to the trial judge, that there is not a scintilla of evidence therein to support the charge.

II.

Plaintiffs filed their notice of appeal on March 23, 1960. The transcript was filed April 19, 1960, so that appellants' brief was due May 19. On application duly made, the time for perfecting their appeal was extended to June 25, 1960. Despite this extension, plaintiffs' brief and appendix were served on July 20, 1960. Defendants have moved to suppress plaintiffs' brief and appendix and to dismiss the appeal. In other circumstances we would not hesitate to do so, and this for the following reasons.

(1) Plaintiffs have not complied with the requirements of R.R. 1:7--1 and 1:7--2, made applicable to this court by R.R. 2:7--1. Their appendix includes only the transcript of the trial proceedings, the trial court's opinion, the transcript of argument on their motion for a new trial, the order for entry of judgment and the notice of appeal. They have supplied none of the pleadings--the complaint, answer, pretrial order, or judgment entered by the clerk....