Hasbrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, Bergen County

• Decision Date: 24 May 1954
• Docket Number: No. A--132,A--132
• Parties: HASBROUCK HEIGHTS HOSPITAL ASS'N v. BOROUGH OF HASBROUCK HEIGHTS, BERGEN COUNTY et al.
• Court: New Jersey Supreme Court

Page 447

15 N.J. 447

105 A.2d 521

HASBROUCK HEIGHTS HOSPITAL ASS'N v. BOROUGH OF HASBROUCK HEIGHTS, BERGEN COUNTY et al.

No. A--132.

Supreme Court of New Jersey.

Argued April 26, 1954.

Decided May 24, 1954.

Dominick F. Pachella, Hackensack, argued the cause for the appellant (Pachella & Chary, Hackensack, attorneys).

Julius E. Kramer, Hackensack, argued the cause for the respondents (Chandless, Weller & Kramer, Hackensack, attorneys).

The opinion of the court was delivered by

BURLING, J.

This appeal involves an action in lieu of prerogative writ dealing in general with the subject matter of municipal zoning and planning. The Hasbrouck Heights Hospital Association, a New Jersey corporation (hereinafer referred to as the plaintiff), filed the complaint against the Borough of Hasbrough Heights, a municipal corporation of the State of New Jersey, and certain officers thereof (hereinafter the municipality and the individual defendants are adverted to collectively as the defendants), in the Superior Court, Law Division, seeking relief including the setting aside of an amendatory ordinance barring the construction and use of any building as a hospital, in the residential zones of the municipality in which the plaintiff's land is situated. Judgment for the defendants was entered. The plaintiff appealed to the Superior Court, Appellate Division, which affirmed. Hasbrouck Hts. Hospital Ass'n v. Hasbrouck Hts., 27 N.J.Super. 476, 99 A.2d 591 (App.Div.1953). The plaintiff petitioned for certification, which we allowed, 14 N.J. 351, 102 A.2d 484 (1954).

It was stipulated at the trial that the plaintiff has owned since September 23, 1937 a tract of land on the easterly side of Terrace Avenue in the territorial limits of the defendant municipality, such tract of land being known as lot 9 in block 104 on the assessment map. The evidence shows that this tract lies in part in a 'C' residence zone, and in part in an 'A' residence zone. The larger portion, in connection with which the present litigation arose, lies in the 'A' zone. It also appears from the evidence that the zoning ordinance of May 9, 1929 permitted in residence zones 'Philanthropic or eleemosynary uses or institutions other than correctional institutions or asylums for the insane;' that Ordinance No. 580, a supplemental ordinance approved December 29, 1947, prohibited, in residence zones, 'nursing homes for compensation' and 'Private sanitoriums and places for institutional care conducted for compensation.'

The evidence shows that the plaintiff was incorporated under the act for the incorporation of associations not for pecuniary profit, on October 14, 1931. The hospital renders to the public treatment of emergency and non-emergency patients with exception of maternity, contagious disease and mental cases, and is classified as a general hospital. The original building was completed in 1945, and the municipality on December 28, 1945 issued a certificate of occupancy for the same for use as 'Hasbrouck Heights Hospital.'

On October 16, 1951 the plaintiff informed the municipal building inspector that it planned an extension to its existing hospital building. Although the plans were submitted no formal application for a building permit was made because the building inspector said he would not accept it.

The minutes of the municipal governing body show that at a regular meeting on November 7, 1951 a residents' petition was received seeking denial of the building permit sought by the plaintiff, and that this petition was referred 'to the committee of the whole.' At the same meeting an ordinance, No. 652, was submitted for first reading. This ordinance purported to amend the existing zoning ordinances to prohibit in residence zones 'public or private hospitals, sanitariums and places for institutional care intended or designed to provide care or sleeping accommodations for more than 3 patients or inmates.' No indication of consideration of the merits of this ordinance appears in the minutes of the meeting, but it was passed on first reading without discussion or dissenting vote. No reference of the ordinance to the municipal planning board was made (a municipal planning board being in existence in that municipality). On November 21, 1951 the governing body continued Ordinance No. 652 on public hearing until December 5, 1951, with no reference to the municipal planning board. The minutes of December 5, 1951 disclose that Ordinance No. 652 was reported 'ready for final action,' but public hearing was ordered continued for two weeks to enable the plaintiff to consult with interested property owners. The minutes of the governing body's meeting on December 19, 1951 show only that Ordinance No. 652 was brought to the floor, its passage was protested by the plaintiff, public hearing was closed and the ordinance was adopted. It was approved by the mayor on the same day.

The looseness of the municipal proceedings is disclosed by the following facts:

The evidence demonstrates that during this time (namely October 16, 1951 through December 19, 1951) there was no communication of any nature to the borough clerk or to the planning board or any member thereof from the governing body with reference to consideration of any proposed ordinance by the planning board. The borough clerk testified, however, that he had 'standing instructions' that 'any ordinance affecting zoning shall be first approved by the Planning Board before they are adopted by the Mayor and Council.' The borough clerk, who was also secretary of the planning board, further testified that he orally asked the chairman of the planning board to call a meeting. He testified that notices were sent out without specifying the purpose of the meeting or mentioning Ordinance No. 652, but no copy was made for the records of the planning board. The planning board met at 7:30 p.m. on December 19, 1951, pursuant to these notices. The borough clerk also was permitted to testify that neither the plaintiff nor the public was given notice of the planning board meeting. The minutes of the planning board disclose that Ordinance No. 652 was presented for consideration (although the record does not disclose the agency who transmitted the ordinance to the planning board) and, after discussion, it was approved, the meeting adjourning at 7:50 p.m. The minutes of the governing body show that its meeting, at which Ordinance No. 652 was passed at second and final reading, convened at 8:15 p.m. The minutes and the record herein do not disclose the receipt of any information by the governing body pertinent to the planning board's approval of the ordinance.

On January 14, 1952 the plaintiff instituted the present action to set aside Ordinance No. 652. On July 7, 1952 the plaintiff filed with the defendant Building Inspector of the Borough of Hasbrouck Heights its formal application for a building permit for its planned hospital extension. The permit was denied by the building inspector. The plaintiff amended its complaint to seek additional relief requiring the issuance of the building permit by the building inspector to the plaintiff.

As hereinbefore stated judgment was entered in favor of the defendants, and this judgment was affirmed by the Superior Court, Appellate Division.

Several questions involved have been stated by the parties to this appeal. The defendants' contention that the plaintiff's proposed hospital extensions are barred by the municipal zoning ordinances existing prior to December 19, 1951, is without merit. Of the remaining questions, one is dispositive, namely whether Ordinance No. 652 was validly enacted. We are of the opinion that the adoption of Ordinance No. 652 was fatally defective and the ordinance should be set aside.

In this respect the controversy in the present matter is confined by the parties to the method of report of the planning board required by R.S. 40:55--35, as amended by L.1948, c. 305, sec. 4, N.J.S.A., the pertinent portion of which reads as follows:

'Such regulations, limitations and restrictions may be amended, changed, modified, or repealed, and the boundaries of such districts may be changed, by ordinance, but no amendment or change shall become effective unless The ordinance proposing such amendment or change shall first have been submitted to the planning board, when such board exists, for approval, disapproval or suggestions, And the planning board...