Brandon v. Bd. of Com'rs of Town of Montclair

Decision Date15 February 1940
Docket NumberNo. 253.,253.
Citation124 N.J.L. 135,11 A.2d 304
PartiesBRANDON et al. v. BOARD OF COM'RS OF TOWN OF MONTCLAIR et al.
CourtNew Jersey Supreme Court

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Certiorari by John R. Brandon and others, to review a resolution adopted by the Board of Adjustment of the Town of Montclair recommending that a building permit be issued to Henry R. Kent and another, and a resolution of the Board of Commissioners of the Town of Montclair approving the recommendation thus made, subject to the condition that John Picken, Building Inspector of the Town of Montclair, be clothed by applicant with authority to interpret conditions laid down by the Board of Adjustment.

Resolutions vacated and cause remanded for further proceedings.

Argued October term, 1939, before TRENCHARD, CASE, and HEHER, JJ.

Pitney, Hardin & Skinner, of Newark, (Corwin Howell and Worrall F. Mountain, Jr., both of Newark, of counsel), for prosecutors.

George S. Harris, of Montclair, for defendants Board of Com'rs of Town of Montclair, Board of Adjustment of Town of Montclair, and John Picken, Building Inspector.

Samuel Rosenblatt, of Montclair, for defendants Henry R. Kent and Maude D. Kent.

HEHER, Justice.

Prosecutors challenge a resolution adopted by the defendant Board of Adjustment on January 5, 1939, after hearing on notice, recommending to the governing body of the defendant municipality that a building permit be issued to the defendants Kent "for a group of garden-type apartments on premises known as No. 160 Gordonhurst Avenue," in the municipality, conditioned as therein specified, and a resolution of the governing body passed on February 23rd ensuing, also after hearing on notice, approving the recommendation thus made, and directing the issuance of a permit, as so conditioned, and subject to the further condition that the municipal building inspector "shall be clothed by the applicant with authority to interpret the conditions laid down by the Board of Adjustment and to require their specific enforcement as so interpreted."

The lands are located in zone "R-l —(One Family Zone)" outlined in the zoning ordinance, wherein such use is forbidden, and more than 150 feet from the line of any zone in which the proposed use is permissible; and the matter came before the Board of Adjustment on the landowners' appeal from the building inspector's denial of their application for such permit.

First. There is to be considered, in limine, defendants' contention that the writ should be dismissed for lack of timely application under the statute, and for laches. The point was not treated in the memorandum awarding the allocatur. We find it to be untenable.

Assuming the power of the Legislature thus to curtail this Court's common-law jurisdiction to issue the prerogative writ of certiorari (vide Traphagen v. Township of West Hoboken, 39 N.J.L. 232; Meredith v. Perth Amboy, 63 N.J.L. 520, 44 A. 971), section 40:556 of the Revised Statutes of 1937, N.J.S.A. 40:55-46, has no pertinency here. It decrees that the writ of certiorari shall not issue "to review any decision of the board of adjustment * * unless application therefor be made within thirty days after the filing of the decision in the office of the board." The actiontaken by the Board of Adjustment here was not a "decision" within the intendment of this provision; it was a mere "recommendation," inoperative unless approved by the municipal governing body. The case of Crescent Hill, Inc. v. Borough of Allendale, 118 N.J.L. 302, 192 A. 514, 516, is not applicable. There, the board of adjustment "had declined to grant relief or to recommend to the governing body that the proposed structure be allowed in the restricted area"—a determination final in character. Certainly, certiorari would not ordinarily, if ever, issue to review a mere recommendation of the board of adjustment in such a case, unacted upon by the governing body.

Nor was there laches. The initial application for a review by certiorari was made to a justice of this court on March 11, 1939. It was determined, adversely to prosecutors, on March 13th. Defendants maintain that "it was not until more than seventeen days thereafter" that they "had the first intimation" of prosecutors' intention to apply for the writ to the court en banc. This informal notice was in fact given on April 1st. Formal notice of the application was served on April 21st.

The allegation of laches is grounded in the asserted right of the "builder" to assume, after the expiration of the thirty days' period adverted to, that a review by certiorari would not be available to prosecutors. It is pointed out that, after the expiration of this interval, "it (the 'builder') took up the option for the property, secured the permit for the demolition of the buildings, proceeded to have its architect prepare detailed specifications, incurring large expense therefor, and upon completion to secure the permit for which it paid the fee of $639.00." But, as stated, this statutory provision was not applicable, and the defendants therefore were not warranted in proceeding on that hypothesis. Apart from this, the delay is not reasonably comprehended by the term "laches."

Second. It is the prime insistence of prosecutors that the action thus taken by the Board of Adjustment, approved by the municipal governing body, is invalid for lack of jurisdiction. This involves a construction of the zoning statute.

The ordinance seems to embody without pertinent change the content of R.S.1937, 40:55-39, N.J.S.A. 40:55-39, delineating the powers of the local board of adjustment and the argument is made that the "provisions of subsection c" thereof "must be read into subsection d", and that "the making of exceptions under subsection d * * * is an act of judicial discretion that can be exercised only upon findings of 'unnecessary hardship', 'substantial justice' and 'harmony' with the zoning plan." These are said to be jurisdictional requirements. It is contended that the contrary interpretation would render subsection d void (a) as a delegation of legislative power in contravention of Article IV, section 1, placitum 1, of the State Constitution, and (b) as a grant to the board of adjustment of an "uncontrolled discretion" to recommend special exceptions, and to the governing body of an "'uncontrolled discretion' to approve or disapprove the recommendation", in violation of the Fourteenth Amendment of the Federal Constitution—citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Defendants, on the other hand, asseverate that there is legislative significance in the omission from subsection d of the jurisdictional prerequisite laid down in subsection c, and that the considerations set forth in section 40:55-32 alone govern the exercise of the authority reserved by subsection d.

The statute, viewed as a whole, does not bear the latter interpretation. We discern a legislative purpose to condition the exercise of the power thus saved in subsection d by the particular standard prescribed by subsection c. It is of the essence of the statutory scheme that the board of adjustment shall have exclusive authority, upon appeal in a "specific case", to grant "such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship", to the end that "the spirit of the ordinance shall be observed and substantial justice done," and the restricted lands abut a district in which the proposed structure or use is permissible under the ordinance (such structure or use not to extend, however, more than one hundred and fifty feet beyond the boundary of the latter district), and, where the lands "do not abut a district in which such structure or use" is allowable, "or where" they are "more than one hundred fifty feet beyond the boundary line" of such district, to "recommend" a variance to the municipal governing body, likewise only upon appeal in a "specific case."

The power in each instance is to grant variations from the terms of the ordinance consonant with its spirit, and not generally to alter the boundaries of the districts delimited by the ordinance. Section 40:55-36, N.J.S.A. 40:55-36, defining the authority of the board of adjustment, provides that the local governing body, in the establishment of the board, "shall provide" that it "may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained", while the authority to change the boundaries of the districts and the regulations otherwise laid down is, by section 40:55-35, N.J.S.A. 40:55-35, reserved to the governing body; it is exercisable by ordinance only, subject to certain conditions therein specified. The delegated authority of the governing body to divide the municipality into districts is not, of course, absolute. The division must be such as is "best suited to carry out the purposes" of the statute, and the "regulations shall be uniform for each class or kind of buildings or other structures throughout each district, but the regulations in one district may differ from those in other districts." Section 40:55-31, N.J. S.A. 40:55-31. The regulations "shall be in accordance with a comprehensive plan and designed" to subserve the enumerated purposes, used distributively and not conjunctively. Section 40:55-32.

The authority vested in the board of adjustment by section 40 :55-39 is radically different from that conferred by section 40:55-35. The board of adjustment is not a legislative body; its functions are quasi-judicial, and, in the making of a variance, its power is confined by the prescribed standard or rule of conduct. The alteration of the districts...

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