Passaic Jr. Chamber of Commerce, Inc. v. Housing Authority of City of Passaic

• Decision Date: 10 June 1957
• Docket Number: No. A--392,A--392
• Citation: Passaic Jr. Chamber of Commerce, Inc. v. Housing Authority of City of Passaic, 132 A.2d 813, 45 N.J.Super. 381 (N.J. Super. App. Div. 1957)
• Parties: PASSAIC JUNIOR CHAMBER OF COMMERCE, Inc., a non-profit New Jersey corporation, et al., Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF PASSAIC et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 381

45 N.J.Super. 381

132 A.2d 813

PASSAIC JUNIOR CHAMBER OF COMMERCE, Inc., a non-profit New Jersey corporation, et al., Plaintiffs-Appellants, v.HOUSING AUTHORITY OF the CITY OF PASSAIC et al Defendants-Respondents.

No. A--392.

Superior Court of New Jersey Appellate Division.

Argued May 20, 1957.

Decided June 10, 1957.

David W. Hanis, Passaic, argued the cause for plaintiffs-appellants.

William N. Gurtman, Passaic, argued the cause for defendants-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This action was brought in the Superior Court, Chancery Division, by the Passaic Junior Chamber of Commerce, Inc. and Charles D. Binns, Warren Binns, Harold Binns and Russell Binns, partners trading as Binns Passaic Iron and Brass Foundry.The defendants are the Housing Authority, the Board of Commissioners the Board of Adjustment and the Planning Board, all of the City of Passaic.On defendants' motion made before trial, Judge Grimshaw dismissed the action.Plaintiffs appeal.

By this action plaintiffs sought, among other things, to enjoin the housing authority and the board of commissioners from proceeding with a low income public housing project proposed to be erected on Chestnut Street, Passaic (where Binns' business is located) and to enjoin the board of commissioners, planning board and board of adjustment from 'granting, approving or recommending any amendments or variances to the master plan, zoning ordinance or zoning map' to accommodate such a project on the Chestnut Street site.The zoning ordinance and master plan prohibit dwellings in the light industrial zone in which the site is located.

The motion was brought on before Judge Grimshaw upon affidavits submitted by plaintiffs and defendants, and it is therefore to be treated as a motion for summary judgment.R.R. 4:12--2.On such a motion the burden falls upon the moving party to show a clear absence of a genuine issue of fact.Monmouth Lumber Co. v. Indemnity Ins. Co. of North America, 21 N.J. 439, 448, 122 A.2d 604(1956).Moreover on such motions the courts will not undertake to evaluate the credibility of conflicting affidavits.We turn to the affidavits.A Kaplen & Son v. Housing Authority of City of Passaic, 42 N.J.Super. 230, 235, 126 A.2d 13(App.Div.1956).

The parties agree that the action of the housing authority, approving the project and locating it on Chestnut Street, cannot be sustained if the authority was guilty of a palpable abuse of discretion.City of Newark v. New Jersey Turnpike Authority, 7 N.J. 377, 381, 81 A.2d 705(1951).That presents the first question.Can it be said that the affidavits show clearly that there was no palpable abuse of discretion on the part of the authority?

In the affidavits submitted on plaintiffs' behalf, it is declared that the authority's determination to undertake this project and locate it at the Chestnut Street site was made 'precipitately' and 'secretly.'The point is without merit.It is definitely refuted by affidavits submitted on defendants' behalf specifying the action taken by the housing authority between February 16 and November 8, 1956, and setting out 27 items which appeared in the local press between February 17 and November 9, 1956.

Furthermore, in the affidavits submitted on plaintiffs' behalf, figures and facts are set out in an endeavor apparently to establish that it would be unwise for Passaic to undertake the project.But this does not establish a palpable abuse of discretion.Judge Grimshaw properly entered a summary judgment on the matter of abuse of discretion.

Next, some point is made by plaintiffs that, as stated in the affidavits mentioned, the Chestnut Street site is not one of the several slum areas in Passaic.No authority is cited on the subject, and (as plaintiffs seemed to concede in dealing with the constitutionality of certain aspects of this legislation) there is no provision in the act requiring housing projects to be located in a slum area.This is pointedly brought out in N.J.S.A. 55:14A--3(i), read with 55:14A--7(b).Under these statutes, the housing authority has power to (1) demolish or remove buildings from a 'slum area,' or (2) provide decent, safe and sanitary dwelling accommodations, or (3) accomplish a combination of the foregoing; but there is nothing to indicate that the new accommodations are to be erected in the slum area.Very similar statutes have been construed as not imposing upon the authority any requirement that the project be placed in a slum area.Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49, 55(Sup.Ct.1940);Riggin v. Dockweiler, 15 Cal.2d 651, 104 P.2d 367(Sup.Ct.1940);Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N.E.2d 333, 338(Sup.Jud.Ct.1939);In re Housing Authority of City of Charlotte, 233 N.C. 649, 65 S.E.2d 761, 769(Sup.Ct.1951);Ferch v. Housing Authority of Cass County, 79 N.D. 764, 59 N.W.2d 849, 860, 861(Sup.Ct.1953);St. Stephen's Club v. Youngstown Metropolitan H.A., 160 Ohio St. 194, 115 N.E.2d 385, 389(Sup.Ct.1953);Blumenschein v Housing Authority of Pittsburgh, 379 Pa. 566, 109 A.2d 331, 336(Sup.Ct.1954), appeal dismissed350 U.S. 806, 76 S.Ct. 68, 100 L.Ed. 724(1955);Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 89, 130 A.L.R. 1053(Sup.Ct.1940);Chapman v. Huntington, West Virginia Housing Authority, 121 W.Va. 319, 3 S.E.2d 502, 509(Sup.Ct.App.1939);cf.Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336, 343, 15 A.2d 647(Sup.Ct.1940);but cf.Romano v. Housing Authority of City of Newark, 123 N.J.L. 428, 434, 10 A.2d 181(Sup.Ct.1939), affirmed124 N.J.L. 452, 12 A.2d 384(E. & A.1940).The authority is given a discretion in the matter; slums at times exist in areas where it would be undesirable to erect new projects.

We come next to the questions raised with respect to the zoning ordinance.By motion made in this court some weeks before final argument, defendants, invoking our original jurisdiction, R.R. 1:5--4(a), asked us to determine whether the housing authority has to apply for a variance or an amendment of the zoning ordinance and master plan.

In that connection defendants rely on the resolution of the planning board adopted on May 16, 1956 and that of the board of commissioners adopted after a public hearing on October 2, 1956, both approving the project and the Chestnut Street site; and they claim that this action, taken with the Cooperation Agreement (herein mentioned), renders any such variance or amendment unnecessary.The point was raised in the Chancery Division by way of defense to the plaintiffs' demand for an injunction prohibiting such a variance or amendment.Though it was unnecessary for Judge Grimshaw to decide the point, defendants claim it presents a question which should now be resolved since the Federal Public Housing Administration will not advance further funds for the project unless a variance or amendment is granted, or (in accordance with defendants' contention) is held to be unnecessary.We have decided to pass upon the question, namely, whether a variance or amendment is necessary.

N.J.S.A. 55:14A--11 provides:

'All housing projects of an authority Shall be subject to the planning, Zoning, sanitary and building Laws, ordinances and regulations Applicable to the locality in which the housing project is situated.In the planning and location of any housing project, an authority shall take into consideration the relationship of the project to any larger plan or long range program for the development of the area in which the housing authority functions'(italics added).

The statute settles any question as to whether such a project is subject to a local zoning ordinance.Cf.Aviation Services v. Board of Adjustment of Hanover Tp., 20 N.J. 275, 119 A.2d 761(1956).For identical statutes, see e.g., Cal. Health and Safety Code § 34326(Deering 1952);Purdon'sPa.Stat.Ann., Tit. 35, § 1556.For quite similar statutes, see e.g.Ill.Stat.Ann., ch. 67 1/2, § 10(Smith-Hurd 1936);N.Y. Public Housing Law § 155(McKinney 1955).Cf.N.J.S.A. 55:14D--15(i), 55:14F--4.1, 55:14G--13, 55:1--24.

However, as above stated, defendants rely upon a Cooperation Agreement made December 22, 1949 between the housing authority and the city under which the city agreed to cooperate with the authority in connection with any low rent housing project undertaken by it with the assistance of the Federal Public Housing Administration, and particularly to

'insofar as the City may lawfully do so * * *; make such changes in any zoning of the site and surrounding territory of such project as are reasonable and necessary for the development and protection thereof.'(Italics added.)

Under N.J.S.A. 55:14B, a statute not cited by counsel, which was adopted the same day as 55:14A, a municipality is given certain powers 'for the purpose of aiding and co-operating in the planning, undertaking, construction or operation of housing or redevelopment projects' pursuant to the Local Housing Authorities Law.N.J.S.A. 55:14B--4.Under this act the governing body may by resolution at a meeting at which the resolution is introduced and without publication (N.J.S.A. 55:14B--7), 'plan or replan, zone or rezone Any part of' the municipality and make exceptions from ordinances and change its map (N.J.S.A. 55:14B--4(d)).Further (N.J.S.A. 55:14B--4(e)), it may in like manner enter into agreements, such as the Cooperation Agreement of December 22, 1949, with a local housing authority respecting action 'to be taken' by the municipality as to the power thus given it to plan and replan, zone and rezone or alter the map.For identical statutes, see e.g., Cal. Health and Safety Code, § 34513(a)(Deering 1952);N.Y. Public Housing Law, § 99(McKinney 1955);Pa.Stat.Ann., Tit. 35, § 1550(j)(3)(Purdon 1937).

It has been said that under such an agreement the...