Piscitelli v. Township Committee of Scotch Plains Tp.

• Decision Date: 04 December 1968
• Docket Number: No. L--18357,L--18357
• Citation: 248 A.2d 274,103 N.J.Super. 589
• Parties: Alfred PISCITELLI and Mildred Piscitelli, his wife, Plaintiffs, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF SCOTCH PLAINTS; Township of Scotch Plains, a municipal corporation; Board of Architectural Review of the Township of Scotch Plains, Defendants.
• Court: New Jersey Superior Court

Page 589

103 N.J.Super. 589

248 A.2d 274

Alfred PISCITELLI and Mildred Piscitelli, his wife, Plaintiffs, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF SCOTCH PLAINTS;

Township of Scotch Plains, a municipal

corporation; Board of Architectural

Review of the Township of

Scotch Plains, Defendants.

No. L--18357.

Superior Court of New Jersey

Law Division.

Dec. 4, 1968.

[248 A.2d 275] Daniel S. Bernstein, Scotch Plains, for plaintiffs and on the brief (Sachar, Sachar & Bernstein, Plainfield, attorneys).

George A. Wood, Scotch Plains, for defendants.

FELLER, J.S.C.

This matter comes before the court as the result of plaintiffs' motion for summary judgment pursuant to R.R. 4:58--3.

Plaintiffs, who are residents of the Township of Union, New Jersey, are property owners and taxpayers of the Township of Scotch Plains, New Jersey, being the owners of property commonly known as 809 Jerusalem Road, Scotch Plains, New Jersey.

On December 5, 1967 defendant adopted an ordinance establishing an Architectural Review Board. Under this ordinance,

all applicants for building permits for construction or renovation of commercial, industrial or multi-family structures or signs must submit plans to this board for approval, said approval to be based upon the standards set forth in section 5 of the ordinance. If the board determines the applicant has complied with the ordinance, the application will be approved and submitted to the building inspector to determine [248 A.2d 276] whether the other laws are complied with. If so, the permit issues

Plaintiffs contend that (1) Scotch Plains has no authority to enact such an ordinance, and (2) the standards set forth in section 5 are vague and unreasonable in that they call for subjective findings.

It is defendants' position that (1) plaintiffs have no standing to bring this suit; (2) the municipality has authority under its police power to enact this ordinance for aesthetic purpose, and (3) the ordinance sets out satisfactory legal standards.

I

With regard to the question of standing, defendants contend that plaintiffs have not built on the vacant land that they own and that they do not intend to build thereon. However, this court is satisfied that plaintiffs have complied with the requirements of Kozesnik v. Montgomery Twp., 24 N.J. 154 at pages 177--178, 131 A.2d 1 at pages 13--14 (1951) within the court stated:

'* * * we have recognized a broad right in the taxpayers and citizens of a municipality to such review of local legislative action without proof of unique financial detriment to them. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 476, 86 A.2d 201 (1952); Garrou v. Teaneck Tryon Co., 11 N.J. 294, 302, 94 A.2d 332, 35 A.L.R.2d 1125 (1953); Koch v. Borough of Seaside Heights, 40 N.J.Super. 86, 93, 122 A.2d 250 (App.Div.1956), affirmed 22 N.J. 218, 125 A.2d 402 (1956); Haines v. Burlington County Bridge Commission, 1 N.J.Super. 163, 171, 63 A.2d 284 (App.Div.1949). The community-at-large has an interest in the integrity of the zoning plan. Beirn v. Morris, 14 N.J. 529, at page 536, 103 A.2d at page 364, sufficient to justify an attack which goes to the validity of the entire district.'

In the case of Behlen & Bros., Inc. v. Mayor and Council of Town of Kearny, 31 N.J.Super. 30, 37, 105 A.2d 894 (App.Div.1954)

the court ruled in effect that property owners have standing to challenge the validity of zoning ordinances relating to the non-conforming use of other properties within the same zone

Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954) succinctly expresses the law to date. In Cresskill, the court has laid down as criteria for standing to attack zoning ordinances mere ownership of property in the area affected.

This court is satisfied that the ownership of property in an area affected by zoning is sufficient to create standing to contest the validity of a zoning ordinance.

As stated above, defendants contend plaintiffs have not built on the vacant land and do not intend to build. This is immaterial. The ordinance in question imposes an additional burden which inures to the land to which this ordinance is applicable. The imposition of this burden is sufficient to create standing. See Speakman v. Mayor & Council of Borough of North Plainfield, 8 N.J. 250, 258, 84 A.2d 715 (1951).

II

The next question to be determined is whether Scotch Plains has authority to enact said ordinance. Municipalities have no inherent authority to enact zoning ordinances. Such power is derived from the State. N.J. Constitution of 1947, Art. 4, § 6, par. 2, gives the Legislature the power to enact enabling legislation in order that the municipalities could enact zoning ordinances. See N.J.S.A. 40:55--1.1 et seq.

N.J.S.A. 40:55--30 specifically gives municipalities the authority to enact zoning legislation. Municipal authority to pass a zoning ordinace is confined to that given by statute. Hegeman Co. v. Mayor, etc., of River Edge, 6 N.J.Super. 495, 502, 69 A.2d 767 (Law Div.1949); Jones v. Zoning Bd. of Adjustment, Long Beach Tp., 32 N.J.Super. 397, 403, 108 A.2d 498 (App.Div.1954) ; Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 416, 417, 88 A.2d 607 (1952); Midtown Properties, Inc. v. Madison Tp., 68 N.J.Super. 197, 207, 172 A.2d 40 (Law Div.1961), affirmed per curiam 78 N.J.Super. 471, 189 A.2d 226 (App.Div.1963). See also Stoker v. Irvington, 71 N.J.Super. 370, 177 A.2d 61 (Law Div.1961); Magnolia Development Co., Inc. v. Coles, 10 N.J. 223, 89 A.2d 664 (1952).

N.J.S.A. 40:55--36 authorizes the governing body or board of public works to provide for the appointment of a board of adjustment, which is empowered to act pursuant to N.J.S.A. 40:55--39.

'In the exercise of the powers conferred by the statute and the ordinance, the zoning board is not the agent of the local governing body. It is a statutory creation for the effectuation of the essential legislative policy. It performs quasi-judicial functions, in their essence discretionary, controlled by the principle and policy of the statute and the local ordinance so far as consistent therewith. Potts v. Board of Adjustment of Borough of Princeton, 133 N.J.L. 230, 43 A.2d 850.' Lynch v. Hillsdale, 136 N.J.L. 129, pp. 132--133, 54 A.2d 723, p. 725. (Sup.Ct.1947).

'Once the board of adjustment is provided for in the zoning ordinance, its powers stem directly from the statute, R.S. 40:55--39, and may not in any way be circumscribed, altered or extended by the municipal governing body.' Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N.J. 509, pp. 515--516, 64 A.2d 347, at p. 351, 9 A.L.R.3d 678 (1949)

Upon the oral argument it was conceded by both parties that the ordinance in question was in fact a 'special exception' ordinance.

A 'special exception' to a municipal zoning ordinance refers to special uses which are permissive in the particular zone under the ordinance, and are neither nonconforming uses nor akin to a variance. A special exception to a municipal zoning ordinance refers to a special use which is considered by the local legislative body to be essential or desirable for the welfare of the community and its citizenry, and which is entirely appropriate and not essentially incompatible with basic uses in the zone involved, but not at every or any location therein or without restrictions or conditions being imposed on such use. Tullo v. Millburn Tp., 54 N.J.Super. 483, 149 A.2d 620 (App.Div.1959).

'Special uses,' denominated 'special exceptions' in New Jersey, are specifically provided for in our Zoning Act (R.S. 40:55--39(b), as amended, N.J.S.A.), under which the board of adjustment is the agency empowered to hear and decide requests for same in accordance with the provisions of any such ordinance. Saddle River Country Day School v. Borough of Saddle River, 51 N.J.Super. 589, 604, 144 A.2d 425 (App.Div.1958).

Our Supreme Court, in Swimming River Golf & Country Club v. Borough of New Shrewsbury, 30 N.J. 132, 152 A.2d 135 (1959), stated the same principle when it held invalid an ordinance which would give the power to grant special exceptions to the planning board. The court stated:

'It has been held that the board of adjustment is the only agency empowered to hear and decide requests for special exceptions in accordance with the standards specified in a municipal zoning ordinance, as this matter is committed by statute to that board and the municipality may not deviate from that framework.'

See Saddle River, supra; Duffcon Concrete Products, Inc. v. Cresskill, 1 N.J. 509, 64 A.2d 347 (1949); Tzeses v. Board of Trustees, South Orange, 22 N.J.Super. 45, 91 A.2d 588 (App.Div.1952).

Matters committed to the board of adjustment by statute and the exercise of its powers, may not in any way be circumscribed, altered or extended by the municipal governing body; and therefore, since the board of adjustment is the only agency empowered by statute to hear and decide a request for special exceptions, an ordinance providing for reference to the planning board for recommendation, and to the governing body for final decision is invalid. Saddle River, supra, 51 N.J.Super. at pp. 604--605, 144 A.2d 425. See Houdaille Con. Mats. Inc. v. Board of Adjustment, Tewksbury Tp., 92 N.J.Super. 293, 223 A.2d 210 (App.Div.1966).

In Levy v. Mravlag, 96 N.J.L. 367, 115 A. 350 (Sup.Ct.1921), plaintiff applied for a permit to construct a building that conformed to the building code. The permit was denied on the ground that a city ordinance, which provided for written approval consent of three-quarters of the property owners within an area of 500 feet of the construction site, had not been complied with. The Supreme Court in determining the ordinance invalid, stated '* * * The power thus granted to the governing body (by statute) of each municipality does not authorize the delegation of that power to any body of citizens to determine uniformity of regulations to be applied. Under this ordinance one...