Honigfeld v. Byrnes

• Decision Date: 15 March 1954
• Docket Number: No. A--98,A--98
• Parties: HONIGFELD v. BYRNES et al.
• Court: New Jersey Supreme Court

Page 600

14 N.J. 600

103 A.2d 598

HONIGFELD v. BYRNES et al.

No. A--98.

Supreme Court of New Jersey.

Argued Feb. 15, 1954.

Decided March 15, 1954.

Louis Schwartz, Paterson, for appellant (Schwartz & Schwartz, Paterson, attorneys; Sol Schwartz, Paterson, on the brief).

Louis Nussman, Paterson, for respondents (George Dimond, Paterson, on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

In an effort to provide additional space to accommodate guests of his hotel situated on East 33rd Street, Paterson, the plaintiff made certain improvements in a small, one-story building on the rear portion of the same plot as the main hotel building. When the building inspector, one of the parties defendant, denied the application for a certificate of occupancy 'to occupy and use the accessory building in the rear of premises * * * for a hotel use and incidental to the hotel use of the main premises thereon,' the plaintiff filed a complaint in lieu of prerogative writ.

The Board of Adjustment, the Board of Fire and Police Commissioners, and the Board of Public Works of the City of Paterson were all denominated defendants, inasmuch as the validity of certain ordinances and regulations of these municipal boards was challenged.

The relief sought was the setting aside of the building inspector's action because it was arbitrary, capricious and unreasonable; a restraint against the defendants interfering with the use of the premises as requested by the plaintiff in his application; the issuance to the plaintiff of the requested certificate of occupancy; and a declaration that section X, paragraph c of the Zoning Ordinance of the City of Paterson, on the basis of which the plaintiff's application was denied, was invalid or, as applied to the subject premises, unreasonable and void.

After hearing oral argument on cross motions for summary judgment, the court below entered judgment in favor of the defendants. The appeal, taken to the Appellate Division, was certified here on the court's own motion. R.R. 1:10--1.

Initially, a procedural question is presented, namely, whether or not the plaintiff was required to appeal to the board of adjustment before instituting the present suit.

The case projects purely legal questions, and the assertion is made that little would be accomplished by submitting the controversy to an administrative tribunal, whose function is not to construe statutes or ordinances or resolve constitutional issues.

Among other substantive points advanced is the contention that a certain portion of the building code is invalid as having been enacted without legislative authority, and also that the proposed use of the rear building constitutes an 'accessory use' within the meaning of the zoning ordinance.

The decision thus turns upon questions peculiarly suited to judicial treatment rather than disposition by an administrative board engaged in a quasi-judicial function. In these circumstances the prerogative proceeding is wholly proper, Tzeses v. Barbahenn, 125 N.J.L. 643, 17 A.2d 539 (E. & A.1940); Lane v. Bigelow, 135 N.J.L. 195, 50 A.2d 638 (E. & A.1946); Carroll v. Board of Adjustment of Jersey City, 15 N.J.Super. 363, 83 A.2d 448 (App.Div.1951), and it was not necessary for the plaintiff to exhaust his remedy of administrative review.

Nor does R.R. 4:88--14 impose the necessity of an appeal to the board of adjustment before the present proceeding, for its requirement of exhaustion of remedies is prefixed with the clause 'except where it is manifest that the interests of justice require otherwise'. We think the ends of justice are best served in the present case by a judicial determination through a proceeding in lieu of prerogative writ; the procedure seems tailored to fit the situation at hand.

The primary consideration is whether the appeal to the intermediate body would be a futile gesture; if so, it is not required, for reasonable speed is still an essential part of substantial justice. We have heretofore permitted parties to bypass the administrative agencies when the decisional task called for the resolving of legal questions.

In Nolan v. Fitzpatrick, 9 N.J. 477, 89 A.2d 13, 17 (1952), we observed that on judicial review of a question of law 'the opinions of these administrative tribunals would not be persuasive as they would be on questions of fact within their purview. The only result of requiring an exhaustion of administrative remedies where only a question of law is in issue would be useless delay, and this in the interest of justice cannot be countenanced.'

Turning, then, to the substantive points raised, in the agreed statement in lieu of record it appears the premises in question are in a residence zone; that in June of 1952 the plaintiff secured a building permit authorizing the soundproofing of the walls and the partitioning of a bathroom in the rear building so it might be used as a recreation and music room in connection with the hotel, instead of as a garage; that the building inspector approved the work when completed and informed the plaintiff it was unnecessary to obtain a certificate of occupancy where the premises were used for the purposes set forth in the building permit.

Subsequently the plaintiff communicated to the building inspector his intention to use the rear building 'as sleeping rooms of the nature of hotel use and incidental to the hotel use of the main building.' Upon being told such use of the rear building was prohibited, the plaintiff made formal application for a certificate of occupancy, 'without prejudice to the rights of the applicant to use said premises as indicated above without making the herein application.'

The application was denied for two reasons: (1) the rear yard space of 13.42 feet between the rear building and the rear lot line did not conform to the zoning ordinance requirement of a rear yard space of 25 feet; (2) the rear building did not meet the requirement of section 359, Subsection II, of the building code, that a dwelling house or place of abode have frontage upon a street or highway.

Plaintiff contends compliance with these regulations is not required, because the rear building is to be put to an 'accessory use' within the meaning of section III of the zoning ordinance, reading:

'In any residence zone, no building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used, except for one or more of the following uses:

'1. Dwellings or tenements, including the office of a physician. * * *

'2. Boarding houses.

'3. Hotels.

'9. Accessory uses customarily incident to the above uses, the term accessory use, however, not including a business or any building or use not located on the same lot with the building to which it is accessory.'

The parties stipulated that if it should be determined the proposed use of the rear building is 'accessory' in nature, then the rear lot requirement of section X of the zoning ordinance, mentioned above, would be satisfied because section IX of the ordinance authorizes the use of an accessory building in the rear half of the lot as long as it is not within ten feet of the rear lot line.

Supporting his...