Sitgreaves v. Bd. Of Adjustment Of Town Of Nutley

• Decision Date: 21 July 1947
• Docket Number: No. 210.,210.
• Parties: SITGREAVES v. BOARD OF ADJUSTMENT OF TOWN OF NUTLEY et al.
• Court: New Jersey Supreme Court

136 N.J.L. 21

54 A.2d 451

SITGREAVES

v.BOARD OF ADJUSTMENT OF TOWN OF NUTLEY et al.

No. 210.

Supreme Court of New Jersey.

July 21, 1947.

Certiorari proceeding by Harold Sitgreaves against the Board of Adjustment of the Town of Nutley and George Fitting, Building Inspector of the Town of Nutley, to review the denial of an application for permit to build a garage in a Residence B District.

Writ dismissed.

May term 1947, before CASE, C. J. and PARKER and BURLING, JJ.

Aaron Heller and Murray A. Laiks, both of Passaic, for prosecutor.

William F. Gorman, of Nutley, for defendants.

BURLING, Justice.

This is a zoning case. Application was made by the prosecutor upon behalf of his mother, Minnie E. Sitgreaves to the Building Inspector of the Town of Nutley for a permit to construct a new building of blocks, 21 feet by 50 feet to be located upon her land approximately 50 feet from the front line of the lot and to be used in operation of the business of repairing automobiles. The size of the lot was 25 feet by 102 feet.

The application was denied upon April 16, 1946, for the following reason: ‘The erection of a building to be used for a garage to repair automobiles would violate Section 13 of the Nutley Zoning Ordinance.’ The premises known as Block 367, Lot 18, located at 93 Conover Avenue, according to the Zoning Map of the Town of Nutley, are located in a Residence ‘B’ District. By the provisions of the said Zoning Ordinance, the erection of said garage and the operation of a business was prohibited in a Residence ‘B’ District under Section 13 of said above mentioned ordinance. Appeal was filed by the prosecutor to the Board of Adjustment of the Town of Nutley upon the following ground of appeal: ‘Decision appealed because it constitutes a hardship on appellant. Property affected is a lot having a 25 foot frontage on which no dwelling house may be erected.’ On April 28, 1946, a meeting of the Board was held to hear the appeal. The Board denied, by unanimous vote of the members present (four), the application and made the following finding:

‘This appeal coming on to be heard before the Board of Adjustment of the Town of Nutley, County of Essex State of New Jersey, on notice, and the Board having viewed the premises in question and having received letters and petition on behalf of persons interested and having decided and determined that the restrictions in the Zoning Ordinance are reasonable in prohibiting the use of the premises mentioned in said appeal for the purpose described in the application for permit and that to permit such use would not be in the interest of all persons concerned and contrary to the spirit of the State Zoning Law and the Zoning Ordinance of the Town of Nutley.’

The prosecutor was represented at said hearing by an attorney. At the hearing many remonstrances were made against granting the permit and none spoke in favor thereof. Seven persons withdrew their approval as expressed in a previously favorable petition of twenty persons lodged with the Board.

R.S. 40:55-46, N.J.S.A., of the Zoning Act provides:

‘Certiorari; when allowed; effect. No writ of certiorari to review any decision of the board of adjustment shall issue unless application therefor be made within thirty days after the filing of the decision in the office of the board. The allowance of the writ shall not stay proceeding upon the decision appealed from unless so ordered by the court.’

No such application was made. On July 15, 1946, a written paper entitled ‘appeal’ was filed with the Board by the prosecutor at the instance of a new attorney who appears in this proceeding for him. On July 27, 1946, a meeting of the Board was held. From the minutes of the Board it appears that a request for another hearing was made and the attorney requested a variance. No new written application for permit had been filed with the Building Inspector. The Board decided that ‘there not being any additional grounds over the appeal of April 28th that the Board will not continue with this hearing.’

It would appear that the proper prosecutor was Minnie E. Sitgreaves unless the present prosecutor was a person aggrieved within the provisions of R.S. 40:55-42, N.J.S.A., and that does not so appear. In the depositions he testified:

‘Q. And you made application to the building inspector yourself to erect a garage on these premises. A. I did.

‘Q. What right have you in the premises? A. I had the permission from her and she signed the affidavit that the building inspector received.

‘Q. Does your mother lease the premises to you? A. No.

‘Q. In other words, you can leave the premises any time you feel like. If you want to get out you can leave it. A. That is possible, yes.’

This question was not raised by the defendants and is the subject of amendment as it appears he acted upon her behalf.

The writ of certiorari allowed a review of the resolution of the Board of Adjustment of July 22, 1946 and the only available reason among those assigned is:

‘4. The said Board of Adjustment erroneously and illegally refused the prosecutor a hearing as a result of which the decision of the zoning board should be reversed.’

The prosecutor made no contention that the appearance before the Board was intended as an application for a rehearing. The time for review by certiorari as prescribed by statute had expired (supra). A reasonable statutory limitation upon the time within which certiorari may issue is constitutional and what is a reasonable limitation will be determined upon the facts of each case as they arise. It is unnecessary for us to determine whether the statutory limitation would, under all circumstances, be reasonable. We are of the opinion that the provisions of the statute, in the light of the particular facts and the history of this proceeding, should be applied. Owen v. Atlantic City, Sup. 1940, 125 N.J.L. 145, 14 A.2d 464. See also Hudson Bus Transp. Co. v. Board of Public Utility Commissioners, Sup. 1944, 131 N.J.L. 576, 578, 37 A.2d 636. In his brief the prosecutor states:

‘Decision appealed because it constitutes a hardship on appellant. Property affected is a lot having a 25 foot frontage on which no dwelling may be erected.’

‘Thereafter, prosecutor took another appeal to the Board of adjudgment by a notice filed on July 15, 1946. In that notice of appeal (S. of C. p. 189 par. 6) prosecutor set forth a further ground for requesting the variance, to-wit (Sc. of C., p. 180). * * * and upon the further ground that the property has always been used as a garage prior to the passage of the Zoning Act.'

The additional ground set forth was available to the prosecutor at the time of the original appeal. At this date, the prosecutor should not be permitted by indirection, to review the adverse decision of the board of adjustment on April 28, 1946. Crescent Hill Inc., v. Borough of Allendale, Sup. 1937, 118 N.J.L. 302, 192 A. 514.

If there had been a change in the physical conditions since the first appeal, and none was asserted, there should have been filed a new application with the Building Inspector. Brandon v. Montclair, Sup. 1940, 124 N.J.L. 135, 11 A.2d 304, affirmed Err. & App. 1940, 125 N.J.L. 367, 15 A.2d 598.

Moreover there is no merit in the reasons otherwise asserted in giving consideration to the entire record, including the depositions taken in support of this review, and they will be presently dealt with:

(a) As to variance from strict performance of the ordinance on the ground of undue hardship

In the immediate area insofar as it is not vacant land, the use to which the property has been put is predominately residential.

The minutes of the meeting of April 28, 1946, disclosed that all the witnesses stated facts tending to show that the granting of the variances would be contrary to public interest and the only evidence offered by the prosecutor, through his attorney was a denial of the asserted facts.

The...