Ackerman v. Bd. Of Com'rs Of Town Of Belleville

• Decision Date: 09 December 1948
• Docket Number: No. A-18.,A-18.
• Citation: 62 A.2d 476
• Parties: ACKERMAN et al. v. BOARD OF COM'RS OF TOWN OF BELLEVILLE et al.
• Court: New Jersey Superior Court

62 A.2d 476

ACKERMAN et al.

v.BOARD OF COM'RS OF TOWN OF BELLEVILLE et al.

No. A-18.

Superior Court of New JerseyAppellate Division, Part A.

Dec. 9, 1948.

Syllabus by the Court.

1. At final hearing on certiorari the court may still dismiss the writ for laches in applying for it, but the court should do so only if that course would promote substantial justice.

2. On application to the board of adjustment to permit a variance from the terms of the zoning ordinance, the board may act without taking testimony or making a formal inspection of the site, where there is no dispute over the facts and they are well known to the board and to all the parties.

3. The board's recommending that the variance be allowed, contained no finding of facts or other recitals. Later the board adopted a second resolution declaring that at the time of its former action it had found certain facts which were the bases of its recommendation. Held, that the recitals and findings contained in the second resolution will be given the same effect as if part of the board's original action.

4. The exercise of power under paragraph d of R.S. 40:55-39, N.J.S.A., is subject to the conditions prescribed in paragraph c.

5. Paragraph d is operative only where the applicant's plight is ‘owing to special conditions,’ that is, to circumstances uniquely touching his land as distinguished from conditions that affect the whole neighborhood.

6. It is not per se a sufficient reason for a variation that the non-conforming use is more profitable to the land owner.

Certiorari by Edward J. Ackerman and another against the Board of Commissioners of the Town of Belleville and others to review a resolution of the Board of Adjustment of the Town of Belleville recommending that George F. Kiernan be permitted to make a nonconforming use of land and a resolution of the Board of Commissioners of the Town of Belleville approving the recommendation of the Board of Adjustment, wherein respondents moved to dismiss the writ on the ground of laches.

Motion to dismiss denied and resolutions vacated.

Before JACOBS, EASTWOOD, and BIGELOW, JJ.

Edward J. Abromson, of Newark, for plaintiffs.

Lawrence E. Keenan, of Belleville, for Board of Commissioners of Town of Belleville.

Gerald T. Foley, of Newark, for George F. Kiernan.

BIGELOW, Judge.

This is a zoning case. A writ of certiorari brings before the Court two resolutions, one by the Board of Adjustment of the Town of Belleville, recommending that the respondent Kiernan be permitted to make a non-conforming use of his land, and the other, an approval of the recommendation by the Board of Commissioners of the Town acting under authority of R.S. 40:55-39(d), N.J.S.A. Upon the final hearing, the respondents moved to dismiss the writ on the ground that it had not been applied for within the time limited by R.S. 40:55-46, N.J.S.A., which requires that the application for a writ to review a decision of the Board of Adjustment shall be made within 30 days. In case the Board of Adjustment declines to recommend that the proposed structure or use be allowed, its action is final and the statutory limitation controls. Crescent Hill v. Allendale, Sup.1937, 118 N.J.L. 302, 192 A. 514. But where the Board of Adjustment makes the recommendation, its action is inoperative until approved by the governing body, and the 30-day limitation does not apply. Brandon v. Montclair, 124 N.J.L. 135, 11 A.2d 304; Id., Err. & App.1940, 125 N.J.L. 367, 15 A.2d 598. While the statute does not expressly fix a time within which a review of the resolution of the governing body must be sought, yet we are satisfied that to give full effect to the legislative scheme, application for the writ should generally be made within 30 days after the governing body acts. In the instant case, the application was made upon notice to the interested parties 43 days after the date of the resolution of the Board of Commissioners. Whether the timeliness of the application was then argued does not appear. The Court may still dismiss the writ because of laches in applying for it, even though the cause is ready for decision upon the merits (Weissinger v. Teaneck, Sup.1932, 162 A. 400, 10 N.J.Misc. 1093), but the Court should do so only if that course would promote substantial justice. None of the parties are prejudiced by the short delay in applying for the writ and so the motion to dismiss is denied.

The prosecutors urge that the recommendation of the Board of Adjustment was invalid because it was not based on the sworn testimony of witnesses. It has been said, in Fonda v. O'Donohue, Sup.1932, 109 N.J.L. 584, 163 A. 2, for example, that a board of adjustment can act only on ‘legal evidence.’ But more recently it has been decided that the board's judgment may be founded upon an examination of the site, made either by the board or a committee appointed for the purpose. Amon v. Rahway, Sup.1937, 117 N.J.L. 589, 190 A. 506; Wilson v. Union Tp., Sup.1939, 123 N.J.L. 474, 9 A.2d 771. The ruling principle is that the board may not act unreasonably or capriciously; there must be a factual foundation on which its judgment is built. How the facts shall be determined depends on the circumstances of the particular matter. In the instant case, there was no dispute over the facts on which the Board's recommendation was sought or was opposed; they were wellknown to the Board and to all the parties. Under such circumstances, the Board could properly act without taking testimony or making a formal inspection of the site.

The original action of the Board was very brief, merely a recommendation that the requested variance be allowed and contained no finding of...