Board of Ed. of Borough of Ft. Lee v. Mayor and Council of Borough of Ft. Lee, s. A--178

• Decision Date: 04 June 1954
• Docket Number: A--249,Nos. A--178,s. A--178
• Citation: 31 N.J.Super. 22,105 A.2d 899
• Parties: BOARD OF EDUCATION OF BOROUGH OF FT. LEE v. MAYOR AND COUNCIL OF BOROUGH OF FT. LEE et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 22

31 N.J.Super. 22

105 A.2d 899

BOARD OF EDUCATION OF BOROUGH OF FT. LEE v. MAYOR AND COUNCIL OF BOROUGH OF FT. LEE et al.

Nos. A--178, A--249.

Superior Court of New Jersey Appellate Division.

Argued May 4, 1954.

Decided June 4, 1954.

James A. Major, Hackensack, argued the cause for the plaintiff-appellant, Board of Education of Borough of Ft. Lee.

William V. Breslin, Englewood, attorney for Mayor and Council of Borough of Ft. Lee and Zoning Board of Adjustment of Borough of Ft. Lee, defendants-respondents.

David S. Bate, Montclair, argued the cause for the defendants-respondents, Steiner-Massari Builders, Inc. and Cliff House, Inc. (Boyd, Dodd, Keer & Booth, Montclair, attorneys; Ernest F. Keer, Jr., Montclair, of counsel).

Before Judges EASTWOOD, JAYNE and SMALLEY.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

This is an appeal from a summary judgment of the Law Division dismissing plaintiff's complaint, filed in lieu of a prerogative writ, to set aside the action of the Borough of Fort Lee in 1949, granting a variance, on recommendation of the board of adjustment, to the owners of property adjacent to plaintiff's high school building, for the construction of an apartment house.

On October 17, 1949 the Board of Adjustment of the Borough of Fort Lee considered an application for a variance to erect a five-story apartment house in a one-family residential zone. The board of education participated in the hearing and offered no objection to the proposed construction, except that it be constructed at least 64 feet from the rear line of the high school property. The board of adjustment recommended the variance to the borough council, subject to the aforementioned reservation.

On November 2, 1949 the borough council passed a formal resolution approving the grant of the variance. The property owner obtained its building permit on July 14, 1953, at which time it commenced building operations.

The owner alleges that it has expended large sums of money on plans, specifications, architects' fees, and mortgage loans and has entered into building construction contracts.

On November 16, 1953 the defendants were served with a preliminary injunction restraining further construction work. Thereafter, on December 10, 1953, on motion of the defendants, Steiner-Massari Builders, Inc., and Cliff House, Inc., a summary judgment was entered dismissing plaintiff's complaint, from which judgment the plaintiff appeals.

It is the plaintiff's contention that the action of the trial court was erroneous in that there is no proof in the record that the requisites of R.S. 40:55--39, N.J.S.A., were present entitling the owners to a variance; that such findings are jurisdictional prerequisites to action by the board of adjustment; that any determination made without those prerequisites is invalid and will not be vitalized by the passage of time.

It appears from the proofs before the trial judge that due notice of the original application to the board of adjustment was given to all property owners within 200 feet of the property in question; that signed consents to the proposed construction were filed with the board by a number of those property owners, and at that time the board of education did not object to the variance, but urged that the proposed building be not less than 64 feet distant from the high school.

The basis of plaintiff's assertion of failure to comply with the statutory prerequisites is an affidavit that the resolution of the board of adjustment failed to recite the same, i.e., a case of hardship as provided in R.S. 40:55--39, N.J.S.A. On the motion for summary judgment, the record and affidavits presented to the court disclose that the resolution of the borough council was adopted on November 2, 1949, and recited that that body having 'considered all of the surrounding facts and circumstances and has found that the granting of such relief would serve the public interest and no one having filed any objections thereto with this body or at the hearing before the Board of Adjustment,' resolved to grant the variance in question and directed the issuance of a building permit therefor; that the secretary of the board of adjustment had in his possession, prior to the hearing before the board, written consents to the grant of the variance applied for, signed by neighboring landowners, copies of the notice directed to neighboring landowners within 200 feet together with a statement that, prior to the board meeting, the applicant had served the notice of the proposed application upon the adjoining property owners; that the board of adjustment received a formal application for a variance as to the lands in question, in proper time, and that appended thereto were drawings of the proposed buildings; that the defendants' application to the board of adjustment requesting a variance contained a recitation of hardship due to the one-family zoning restriction. We thus conclude that the trial court's finding of 'no genuine issue as to any material fact' was proper.

The affidavit appended to plaintiff's complaint for injunctive relief alleges that the minutes of the board of adjustment and resolution of the borough council fail to recite a finding that literal enforcement of the provisions of the ordinance will work unnecessary hardship as required by the statute. In the case of Wilson v. Union Township, 123 N.J.L. 474, 478, 9 A.2d 771, 773, (Sup.Ct.1939), Chief Justice Borgan considered a similar matter. The board of adjustment recommended that the township committee grant the applicant a variance and the township committee received that recommendation and after consideration, granted the variance. The appellants thereafter contended that the action was illegal because there was no finding that the refusal of the variance to the ordinance would work unnecessary hardship on the applicant. The court, denying merit to that contention, said:

'* * * The several resolutions that have been mentioned are a complete answer to this argument. The municipal authorities, to whom the law entrusts matters of this kind, affirmatively approved the petition for variation of the ordinance. Implicit in their resolutions is the finding that the change will not be 'contrary to the popular interest' and in neither municipal body was there any dissenting voice.'

More recently this court commented on Chief Justice Brogan's ruling and stated in the case of Ackerman v. Board of Commissioners, 1 N.J.Super. 69, 74, 62 A.2d 476, 478 (App.Div.1948):

'* * * 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 well-known 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.'

On March 15, 1951 Rule 3:81--15 (now R.R. 4:88--15) was adopted and it bore the descriptive title 'Limitation on Bringing Certain Proceedings' and limited review of decisions of zoning boards of adjustment to proceedings brought within 30 days from the filing of the decision. In Theresa Grotta Home for Convalescents v. Bd. of Adjustment of Borough of North Caldwell, 19 N.J.Super. 331, 335, 88 A.2d 355, 357 (App.Div.1952), Judge Francis stated:

'There is no distinction in principle...