Hill Homeowners Ass'n v. Zoning Bd. of Adjustment of City of Passaic

• Decision Date: 03 June 1974
• Parties: HILL HOMEOWNERS ASSOCIATION, a corporation of the State of New Jersey, et al., Plaintiffs, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PASSAIC et al., Defendants.
• Court: New Jersey Superior Court

Page 170

129 N.J.Super. 170

322 A.2d 501

HILL HOMEOWNERS ASSOCIATION, a corporation of the State of New Jersey, et al., Plaintiffs, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PASSAIC et al., Defendants.

Superior Court of New Jersey Law Division.

June 3, 1974.

Marvin A. Stern, West New York, for plaintiffs.

Otto F. Blazsek, Passaic, for defendant Zoning Bd. of Adjustment of City of Passaic.

Leonard Bitterman, Passaic, for defendants Elias Drazin, and Mayor and Council of City of Passaic.

Harry Kampelman, Passaic (Steven E. Pollan, East Orange, on the brief), for defendant Harry Stanford.

SCHWARTZ, L., J.C.C., Temporarily Assigned.

Plaintiffs challenge the approval by the Board of Adjustment of the City of Passaic of an application under the provisions of N.J.S.A. 40:55--39(c) for variances permitting the construction of an apartment house on premises at the corner of Aycrigg Avenue and High Street in accordance with building plans which failed to conform to the zoning ordinance in the area of side yard, parking spaces and floor area ratio regulations.

The building plans provided for 252 apartments and various facilities to accommodate the tenants on a plot of land containing 85,750 square feet. The testimony proferred by the applicant related to elevator service, preservation of greenery, water supply, auxiliary power system, garbage collection and ventilation and, in fact, these facilities became the subject of various conditions imposed by the board.

However, no testimony was offered that an apartment building of smaller dimensions which could accommodate side yards, parking spaces and floor area ratio in conformance with the zoning ordinance, could not be readily constructed on the site. Nor could the evidence support a finding that other permitted structures in this zone were not reasonably feasible on a tract of this size. Dissenting opinion of Judge Kolovsky, Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., 127 N.J.Super. 60, 316 A.2d 64 (App.Div.1973), aff'd o.b. 64 N.J. 334, 316 A.2d 5 (1974).

If the argument is that a building of smaller dimensions or fewer apartments would not be as profitable, it is fundamental that mere economic hardship is not a sufficient special circumstance upon which to ground a variance. Wilson v. Mountainside, 42 N.J. 426, 451, 201 A.2d 540 (1964); Bern v. Fair Lawn, 65 N.J.Super. 435, 450, 168 A.2d 52 (App.Div.1961).

There is no showing in the record of any exceptional narrowness, shallowness or shape of the plot, exceptional topographic condition of the land or any other physical condition thereof which would cause undue hardship or peculiar or practical difficulties to the applicant if the provisions of the ordinance were enforced. There is nothing in this property which is unique to it, differentiating it physically from other property in the zone. Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 174, 238 A.2d 457 (1968).

The plot is not undersized under the terms of the ordinance. The applicant seeks to shoehorn an oversized structure into an area not large enough to accommodate the parking and side yard requirements. The personal hardship does not constitute sufficient ground for the granting of a variance under subsection (c).

The pretrial order refers to legal issues arising from an area of testimony which has not been heretofore reviewed in any reported decision in this State and which is ripe for the court's consideration in the light of the widespread practice of admitting similar evidence which prevails in many municipalities.

The president of the planning board was called as a witness at the instance of the board of adjustment. He was not qualified as a planning expert but recited the minutes of the planning board meeting at which plaintiff had applied for and was granted site plan approval of this project, in accordance with its authority under the local zoning ordinance.

The planning board record, in addition, contained the recommendation that a variance be approved by the adjustment board for the proposal which was deficient in the area of the floor area ratio, side yard and parking spaces requirements of the ordinance.

The report and recommendation of the planning board presented in a variance hearing gives rise to the issues of whether the application for site plan approval should precede or succeed the variance hearing; whether the impartiality of the quasi-judicial board of adjustment is tainted when influenced by a planning board decision and recommendation, and whether site plan applications are statutorily cognate to functions of the board of adjustment rather than the planning board.

I

Unless the premises and the structure which are the subjects of an application for site plan approval conform in all respects to the zoning ordinance, or unless the situs and the proposed construction decisionally conform by grant of the adjustment board (or governing body under a (d) variance), the consideration of site plan approval is premature.

A site plan reviewing board (the planning board in Passaic) cannot require an applicant to place any structure, whether it is a principal structure or accessory building, or whether it is parking or driveway pavement or barrier, etc., in such a position that it violates the provisions of a zoning ordinance or the terms of a variance.

Until the board of adjustment expresses in its resolution the nature of the adjustment or deviation from the zoning ordinance permitted by it, the site plan reviewing board cannot determine if its requirements will impinge upon the permission vested or conditions imposed by the adjustment board by virtue of its superior statutory authority. Further, any recommendation it makes to the board of adjustment is an impropriety to which we will later advert.

Site plan applications should not be entertained until after the zoning authorities have resolved applications for variance when they are required.

II

Since the adjustment board had elicited the report and recommendation of the planning board, we cannot assume it was uninfluenced by the latter's advice and advocacy. We hold that the action of the planning board, in recommending approval of the variance application, constituted an unlawful intrusion, though solicited, upon the quasi-judicial responsibility borne by the board of adjustment when it sat as an administrative agency to determine if the applicant's situation warranted zoning adjustment by variance.

While strict rules of judicial procedure are not imposed and the adjustment board is not bound by strict rules of evidence, its judgment must be substantially grounded in competent evidence (Stolz v. Ellenstein, 7 N.J. 291, 295, 81 A.2d 476 (1951)) arising from examination and cross-examination of witnesses, unless waived. Experts may testify, but mere reports, recommendations, letters, affidavits or petitions cannot be made the basis of the board's judgment. The board must engage in the judicial excursion of deriving ultimate facts from the basic factual determinations it has reached from the Competent evidence adduced. Tomko v. Vissers, 21 N.J. 226, 121 A.2d 502 (1956).

In West Milford Tp. Planning Bd. v. Tp. Council, 123 N.J.Super. 135, 144, 301 A.2d 781 (Law Div.1973), the court marshalled decisions analogizing the authority of courts of general jurisdiction to administrative tribunals with quasi-judicial powers and pointed out that their function partakes of the judicial even though their exercise is styled 'quasi-judicial'; that the statutory scheme was to keep the boards of adjustment independent of other municipal agencies; that the board of adjustment was a statutory creation for the effectuation of legislative policy, rather than being an agent of the local governing body; that the municipal agencies sitting as quasi-judicial boards are to apply our Rules of Court in considering the timeliness of appeals.

The court, to further clarify the character of this board, also quoted from 4 Cooley, Taxation (4 ed. 1929), § 1621 at 3239, which referred to tax assessors but which applies to this case with equal force:

They who are intrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of the courage. * * * And this principle of protection is not limited in its application to the judges of courts, but extends to all officers who have duties to perform which in their nature are judicial, and which are to be performed according to the dictates of their judgment.

It may not be inappropriate to further catalogue some of the more significant protocols and the status of boards of adjustment in the legislative scheme:

-- Not only must the board be judicious in its judgments but, as the court stated in State v. Dowling, 5 N.J.Misc. 180, 135 A. 798 (1927), it must act judicially.

--If the proceedings before the board lack recognized elements of a judicial inquiry and impartiality, they will be set aside. Hendey v. Ackerman, 103 N.J.L. 305, 136 A. 733 (Sup.Ct.1927); Siegel v. Newark Bd. of Adjust., 137 N.J.L. 423, 60 A.2d 626 (Sup.Ct.1948).

-- As in judicial proceedings, Res judicata is applicable to actions heard by the board, if circumstances have not changed. Russell v. Tenafly Bd. of Adjust., 31 N.J. 58, 155 A.2d 83 (1959).

-- A quasi-judicial procedure has such judicial attributes that an absolute privilege extends to communications made by an objector as it does when made before a court, when it is pertinent to the questions legitimately to be decided. J.D. Const. Corp. v. Isaacs, 95 N.J.Super. 122, 230 A.2d 168 (App.Div.1967).

-- While the hearing before the board is not a formal trial, it partakes of the character of a quasi-judicial proceeding which must be governed by a spirit of impartiality uninfluenced by considerations Dehors the record. Kramer v. Sea Girt, Bd. of Adjust., 45 N.J. 268, 284, 212 A.2d 153 (1965).

-- Such board...