Apartments v. Bd. Of Adjustment Of City Of Englewood

• Decision Date: 07 March 1949
• Docket Number: No. A-59.,A-59.
• Citation: 64 A.2d 355
• Parties: CONCORD GARDEN APARTMENTS et al. v. BOARD OF ADJUSTMENT OF CITY OF ENGLEWOOD et al.
• Court: New Jersey Superior Court

64 A.2d 355

CONCORD GARDEN APARTMENTS et al.

v.BOARD OF ADJUSTMENT OF CITY OF ENGLEWOOD et al.

No. A-59.

Superior Court of New JerseyAppellate Division, Part A.

March 7, 1949.

Appeal from former Supreme Court.

Certiorari proceeding by the Concord Garden Apartments and others against the Board of Adjustment of the City of Englewood and such city to review the Board's action in denying plaintiffs' application for a variance from the city zoning ordinance to permit plaintiffs to construct an apartment house. Judgment for defendants, and plaintiffs appeal.

Appeal dismissed, and Board's determination affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Jacob Schneider and Schneider & Schneider, all of Englewood, for plaintiffs-appellants.

LeRoy B. Huckin, of Englewood, for defendants-respondents.

EASTWOOD, Judge.

Certiorari was allowed by the former Supreme Court to review the action of the Board of Adjustment of the City of Englewood, denying plaintiffs' application for a variance from its zoning ordinance to permit plaintiffs to erect and construct a two-story garden type apartment house for thirty-six families. The Building Inspector had previously refused to grant plaintiffs a building permit, on the ground that the plans and specifications submitted with plaintiffs' application did not comply with the side yard restrictions required by the zoning ordinance. No appeal was taken from the action of the Building Inspector.

For a clear understanding of the issue here, we deem it essential to summarize the factual situation. Plaintiffs' property consists of a lot of land situate on Engle Street, one of the main thoroughfares of the city, and is approximately two hundred and thirteen feet wide by four hundred and sixty-five feet deep, is adjacent to a large cemetery on the south and east sides thereof, and is in a residential neighborhood, with one or two doctors' offices. When plaintiffs applied respectively for the building permit and variance, their property was in District No. 2, Residence, Area B, a multiple dwelling house zone and they were entitled to construct a two-family garden type apartment house in conformity with the provisions of the ordinance. Subsequent to the Building Inspector's refusal to issue a building permit and, on October 23, 1947, plaintiffs applied to the Board of Adjustment for a variance from the side yard restriction, which was denied and plaintiffs did not seek a review thereof. On March 16, 1948, the governing body introduced and passed on first reading a new zoning ordinance, whereupon plaintiffs exercised their contract of sale and took title to the premises in question on March 17, 1948. They revised their plans to comply with the proposed ordinance. However, on April 6, 1948, the proposed new ordinance was withdrawn by the governing body and no further action was taken thereon. Plaintiffs then submitted a new application to the Board of Adjustment for a variance based on revised plans, which application, after a hearing, was denied on June 8, 1948. On July 6, 1948, plaintiffs were allowed a writ of certiorari to review this latter action of the Board of Adjustment. On July 13, 1948, the governing body introduced an amendment to its zoning ordinance whereby plaintiffs' property and other parcels theretofore zoned as District No. 2, Residence, Area B, were changed to District 2-A, Residence, Area B, limited to a one and two-family dwelling house zone, and other changes were made in the zoning districts not affecting the issue here. The amendatory ordinance was adopted on final passage on August 10, 1948.

We find it unnecessary to discuss and decide this appeal on the grounds advanced by plaintiffs. We are convinced that under our decided cases the adoption of the amendatory ordinance on August 10, 1948, changing, inter alia, the zoning district of plaintiffs' property, effectually disposes of this issue.

The writ of certiorari did not include a review of the amendatory ordinance of August 10, 1948. Plaintiffs contend, however, that the Board of Adjustment's refusal to grant a variance was for the specific purpose of permitting the governing body ‘to pass a new...