Toutphoeus v. Joy

• Decision Date: 19 December 1963
• Docket Number: No. A--753,A--753
• Citation: 81 N.J.Super. 526,196 A.2d 250
• Parties: Frank TOUTPHOEUS, George B. Ulrich, R. B. Parry, D. Kniebel, Daniel Randall, Robert J. Goodyear and Harry F. Walther, Plaintiffs-Respondents, v. Frank JOY, Jr., Defendant-Appellant, and Board of Adjustment of the Borough of Oradell, Edward Opsut, Building Inspector of the Borough of Oradell, Mayor and Council of the Borough of Oradell, Planning Board of the Borough of Oradell, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 526

81 N.J.Super. 526

196 A.2d 250

Frank TOUTPHOEUS, George B. Ulrich, R. B. Parry, D. Kniebel,

Daniel Randall, Robert J. Goodyear and Harry F.

Walther, Plaintiffs-Respondents, v. Frank JOY, Jr., Defendant-Appellant, and Board of Adjustment of the Borough of Oradell, Edward Opsut,

Building Inspector of the Borough of Oradell, Mayor and

Council of the Borough of Oradell, Planning Board of the

Borough of Oradell, Defendants.

No. A--753.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 26, 1963.

Decided Dec. 19, 1963.

Michael J. Ferrara, Hackensack, for appellant (Ferrara & Guez, Hackensack, attorneys).

Richard A. Kurland, Westwood, for respondents.

James A. Major, Hackensack, for defendants Borough of Oradell and Edward Opsut, Building Inspector (Everett I. Smith, Hackensack, attorney, James A. Major, II, Hackensack, on the brief).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Defendant Frank Joy, Jr. appeals from a judgment of the Law Division, setting aside and declaring null and void (1) a subdivision of his property into two lots, each with a frontage of 85 feet, conditionally approved by the planning board of the Borough of Oradell, and (2) a variance granted by the board of adjustment on the ground of hardship allowing use of the subdivided lots for residential purposes, notwithstanding the local zoning requirement of a minimum frontage of 100 feet for each lot.

The case was presented to the Law Division solely on the record below, briefs and oral argument. The Law Division determined that (1) there was no proof of hardship, and (2) the chairman of the board of adjustment had not completely removed himself from the proceeding before the board, after publicly disqualifying himself at the hearing on the ground that he had an interest in the application, even though he did not participate in the discussion or vote. The Law Division also found lacking in merit defendant Joy's contention that plaintiffs, property owners within a radius of 200 feet of the subject property, had not filed their complaint within the time limited by R.R. 4:88--15.

Plaintiffs had also attacked the planning board's treatment of Joy's application as one for a 'minor subdivision' and its granting thereof without notice to the neighboring property owners or any opportunity afforded them to be heard. The Law Division decided that the planning board had properly processed the application as one for a minor subdivision. There is no cross appeal from that phase of the judgment.

Joy purchased the property as two separate parcels, known as lot 22A in block 227 and lot 23 in block 270. There was a one-family house on the corner lot, lot 23, which had a frontage of 113 feet on Forest Avenue and a depth of about 281 feet along Oradell Avenue. Adjoining on the south was lot 22A, measuring 80 281 feet.

Prior to March 7, 1960 the zoning ordinance required lots in this AA residential zone to have a street frontage of at least 75 feet. On that date the borough adopted an ordinance increasing the required frontage to 100 feet and providing for a minimum area of 10,000 square feet for each building plot. Joy purchased subsequent to this ordinance.

On May 9, 1961 Joy applied to the planning board for approval of a minor subdivision to eliminate part of the line dividing his lots and establishing a new line (dotted line on diagram, Infra), so as to create three lots, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

His application was granted without notice or hearing.

On October 10, 1961 Joy applied for a further minor subdivision, whose effect was to divide 170 feet of his property along Oradell Avenue into two lots, each with a frontage of 85 feet on that avenue. Because of the depth of these proposed lots, the one contained an area of 12,506 square feet and the other 15,227 square feet, thus meeting the minimum area requirement. The application was granted without notice or hearing. The map was signed on October 12, 1961 with the notation 'conditionally approved.' Since the lots had less frontage than the minimum 100-foot requirement of the zoning ordinance, planning board approval was given subject to the condition that Joy obtain the necessary variance.

On October 13, 1961 Joy applied to the board of adjustment for a variance to approve the undersized lots, in accordance with the planning board's conditional approval. Notice of the hearing to be held on October 23, 1962 was given to all property owners within a radius of 200 feet, as required by law. Plaintiffs and their attorney attended the scheduled hearing to object to the variance. The chairman disqualified himself because of interest in the application, but did not specify the interest.

No stenographic record was made of the proceedings at the October 23rd meeting. The minutes thereof indicate that there was a statement by Joy's attorney that the application was based on N.J.S.A. 40:55--39(c), the hardship provision. He described the neighborhood, with the Bergen County Catholic High School opposite, and the gasoline station, auto repair shop on Forest Avenue in Paramus, and the small parcels, also on Forest Avenue and on Oradell Avenue in Paramus, most of which he alleged were within the 200-foot area. He contended that the variance sought would actually cause the property to comply with, rather than vary, the character of the neighborhood. No proofs were submitted to support this statement beyond the testimony of Joy, noted below.

Joy testified that he was a builder with 15 years' experience, owned the property in question, and 'did not feel the property in the neighborhood would be depreciated in any manner.' He stated that at the time he purchased the land he intended to subdivide it into four lots. He said that he planned, if his application was approved, to erect on one lot a ranch-type house, 47 feet by 43 feet, in the $40,000--$43,000 bracket; and, on the other lot, a split-level dwelling 59 1/2 feet long by 32 feet deep, in the $30,000 bracket. There would be 38 feet of space between the houses. He had a buyer for the ranch-type house and another person interested in the split-level.

The objector's attorney stated that the application was in reality for a major subdivision, without complying with the procedural requirements therefor; sought to create two substandard lots, thus 'whittling away' the zoning ordinance; and that the land was purchased subsequent to the adoption of the zoning ordinance 'without certainty that this variance would be granted.' Several objectors testified, asserting opposition to any relaxation of the zoning requirement. Following their testimony, the board announced that decision would be reserved and handed down at the November meeting.

On November 27, 1961 the variance was granted at a regular meeting of the board of adjustment. Three members voted in favor of the application and two abstained, including the chairman. The chairman signed the resolution approving the grant of the variance, in his capacity as chairman. The attorney of plaintiffs was present at that meeting and thus had actual knowledge on that date of the board's decision. However, it was not until January 25, 1962 that he received a copy of the findings and conclusion of the board of adjustment. The decision of this board was first published in a newspaper on January 25, 1962. On February 13, 1962 the mayor and clerk of Oradell signed the map.

I.

Plaintiffs' complaint in the Law Division was filed on March 8, 1962, 42 days after the newspaper publication of the decision of the board of adjustment. Defendant Joy contends here, as he did in the Law Division, that the complaint was not filed within the 45 days limited by R.R. 4:88--15, in that plaintiffs, through their attorney, had actual knowledge of the board's decision on November 27, 1961. He places reliance upon Riedel v. Sheeran, 73 N.J.Super. 105, 179 A.2d 174 (Law Div.1962).

R.R. 4:88--15 requires proceedings in lieu of prerogative writs to be commenced within 45 days of the accrual of the right to review, except that under (b) of this rule review of any determination of a planning board or board of adjustment may not be commenced 'after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality.' The action herein was commenced within the 45-day period expressly provided for by this rule. The Law Division, therefore, properly held that the instant suit was commenced within time.

Moreover, we agree with its conclusion that, if enlargement of the time were required to be granted to bring the Law Division action, R.R. 4:88--15(c) permits such enlargement '(w)here it is manifest that the interest of justice requires,' and this would be such a case. Even were ...