Brazer v. Borough of Mountainside

• Decision Date: 30 July 1968
• Docket Number: No. L--7621,L--7621
• Citation: 102 N.J.Super. 497,246 A.2d 170
• Parties: Saul BRAZER and Gloria Brazer, his wife, Plaintiffs, v. BOROUGH OF MOUNTAINSIDE, a municipal corporation, and the Planning Board ofthe Borough of Mountainside, in the County of Union, Defendants.
• Court: New Jersey Superior Court

Page 497

102 N.J.Super. 497

246 A.2d 170

Saul BRAZER and Gloria Brazer, his wife, Plaintiffs, v. BOROUGH OF MOUNTAINSIDE, a municipal corporation, and the Planning Board ofthe Borough of Mountainside, in the County of Union, Defendants.

No. L--7621.

Superior Court of New Jersey Law Division.

July 30, 1968.

Irvine B. Johnstone, Jr., Westfield, for plaintiffs (Johnstone & O'Dwyer, Westfield, attorneys, Frank T. Swain, Westfield, on the brief).

Charles J. Irwin, Newark, for defendants.

WOOD, WM. FILLMORE, J.C.C. (temporarily assigned).

In this suit in lieu of prerogative writs plaintiffs challenge the ruling of the Mountainside Planning Board (hereinafter referred to as the board), which was affirmed by the borough council, requiring that they, as a condition for the approval of a subdivision of their property, provide a right of way across the property for the extension of a street known as Camelot Court. Defendants are the borough and the board.

The case raises difficult statutory and constitutional questions. Defendants contend that their action is authorized by statute (N.J.S.A. 40:55--1.20). Plaintiffs, on the other hand, deny the existence of any such authority, and, in addition, argue that defendants' action was an unconstitutional taking of their property without compensation. I have found no judicial precedents precisely in point.

The property in question is known as lot 3, Block 3A on the tax map of the borough and consists of a tract fronting on the northerly side of U.S. Highway No. 22 and extending in a northerly direction a distance of approximately 500 feet. The tract is 200 feet wide at the highway and 140 feet wide at the rear. Plaintiffs' original application sought permission merely to divide the tract into two lots, one in the front to be designated as lot 3 and the other in the rear as lot 3A.

In the vicinity of plaintiffs' property Camelot Court is approximately parallel to the highway, both running in an easterly-westerly direction. As now laid out and open, Camelot Court terminates at the westerly side of proposed lot 3A. However, on the master plan previously adopted by the board that street is shown as extending in an easterly direction across plaintiffs' property and connecting with a street known as Long Meadow. The latter street is described by defendants in their trial memorandum as a 'primary collector street functioning to collect traffic from numerous minor and secondary streets, including Camelot Court, Nottingham, Way, Juniper Way and Pembrook Road.'

At the initial hearing on the above application, held in May 1967, the board was apparently concerned with whether plaintiffs' intended use of the rear lot would interfere with the proposed extension of Camelot Court as shown on the master plan. The application was held in abeyance until the June meeting; in the meantime plaintiffs filed a supplemental application seeking to subdivide the rear lot itself into two building lots, to be designated as lots 3A and 3B, respectively. The latter application clearly indicated that plaintiffs' intended use would frustrate the board's plan for the extension of Camelot Court. The board granted the original application at the June meeting but, in order to preserve its master plan, imposed the condition previously mentioned.

The supplemental application was held in abeyance. Consequently, the application is not involved in this suit except to the extent that the facts disclosed thereby prompted the board to impose the condition upon the granting of the original application.

Before proceeding with the merits of this case I shall dispose of a procedural question raised by defendants. They contend that the suit is barred because it was not brought within the time prescribed by R.R. 4:88--15. That rule requires that prerogative writ proceedings to review a municipal governing body's action of the type here involved be commenced within 45 days from the publication of notice of that action or the mailing of the notice to the applicant, whichever is later.

The complaint alleged that the council's affirming resolution was adopted on September 19, 1967, and the answer admitted the truth of that allegation. The complaint was filed on November 2, 1967, only 44 days after the adoption date stated in the complaint. If that adoption date is correct, the suit is clearly within time. The question of the timeliness of the suit was first raised at the pretrial conference. The borough changed attorneys between the filing of the answer and the pretrial conference, and the new attorney expressed a different view as to when the resolution was adopted. His view is that the resolution was adopted on September 5, 1967; that notice of the adoption was sent to plaintiffs' attorneys on September 14, and that the time for this suit expired 45 days from the last-mentioned date, or on October 29. For a variety of reasons this view is faulty.

In the first place, there never was a newspaper publication of the notice as contemplated by the rule. Secondly, the notice sent to the plaintiffs' attorneys on September 14 as reasonably understood by them, was not that the resolution had been adopted but that it would be adopted on September 19. The notice stated:

'The governing body of the Borough of Mountainside has decided to affirm the decision of the Planning Board with regard to the subdivision application of your client, Saul Brazer.

Formal opinion and findings of fact will be stated at the public meeting, Tuesday, September 19th 1967.'

Hardly anyone reading this notice would have gotten the idea that the borough council had already taken what was considered formal action on the application.

Finally and most significantly, the action of the council on September 5 was not in fact a legally effective adoption of the resolution since that action was taken at what is known as a caucus meeting, that is, an informal meeting to which the public is not admitted and of which no public record is made. It is axiomatic that municipal governing bodies may take official action only at public meetings. Cf. Anschelewitz v. Borough of Belmar, 2 N.J. 178, 65 A.2d 825 (1949). Decisions reached at a caucus are nothing more than gentlemen's agreements as to how the members will vote at a later public meeting.

The copy of the resolution offered in evidence by the plaintiffs bears a certification by the borough clerk that the resolution was adopted on September 19, 1967. However, the council minutes for that date, which were also offered in evidence by the plaintiffs, fail to indicate clearly that a vote was actually taken on the resolution on that date. The only reference to plaintiffs' appeal is a notation in the list of communications received by the council that a letter had been received from the borough attorney 'enclosing decision of governing body Re: appeal of Saul Brazer pursuant to action taken by them on September 5, 1967 at its caucus meeting.' The so-called decision was a draft of the resolution. The draft was incorporated in the minutes but there is no clear statement that a vote was taken thereon. While the draft bears a notation of a 'Recorded vote' for affirmance by all of the Council members, that notation evidently refers to action taken on September 5 since the notation is followed by a statement that the matter was decided on the latter date. It is also significant that the attorney's letter advised the council only that the resolution, if satisfactory, 'should be read into the minutes of the public meeting on September 19, 1967.' No instruction or suggestion was given that a vote should be taken.

Thus, while it is clear that the resolution was not formally adopted prior to September 19 and that, therefore, this suit was timely brought, it is not certain that the resolution was adopted on that date. It seems more likely that the resolution was never formally adopted. However, no significance is placed on the back of formal adoption since it was the undoubtable intention of the council to affirm the action of the board. It is probable that the council intended its affirmance to become official or effective on September 19.

I return now to a consideration of the merits of the case. Plaintiffs concede that N.J.S.A. 40:55--1.20 gives the board broad authority to control, in the public interest, the size, grade and location of streets, including authority to require that streets in a proposed subdivision conform to proposals on the master plan. But they insist that this authority is limited to situations where the owners themselves wish to establish streets. Under their view, in other words, if they intended to establish streets within their proposed subdivision, the board could prescribe the size and location thereof but, since they have no desire to build any streets, the board and the borough are powerless even to require them to reserve rights of way other than by means of condemnation proceedings. I do not believe that the Legislature intended to ordain that kind of impotence. N.J.S.A. 40:55--1.20 reads in pertinent part:

'In acting upon plats the planning board shall require, among other conditions in the public interest, that the tract shall be adequately drained, and the streets shall be of sufficient width and suitable grade and suitably located to accommodate the prospective traffic, to provide access for fire-fighting equipment to buildings and to be co-ordinated so as to compose a convenient system, conforming to the official map, or if there is no official map, relating properly to the existing street system. Where the planning board after hearing has adopted portions of the master plan with proposals regarding the street system within the proposed subdivision, the Board may require that the street shown conform in design and in width to the proposals shown on the master plan.' (Emphasis added)

Plaintiffs argue that the reference in the last sentence to 'the street shown' is only to such...