Ward v. Scott

• Decision Date: 14 June 1954
• Docket Number: No. A--135,A--135
• Citation: 105 A.2d 851,16 N.J. 16
• Parties: WARD v. SCOTT, Mayor, et al.
• Court: New Jersey Supreme Court

Page 16

16 N.J. 16

105 A.2d 851

WARD v. SCOTT, Mayor, et al.

No. A--135.

Supreme Court of New Jersey.

Argued May 10, 1954.

Decided June 14, 1954.

Everett M. Scherer, Newark, argued the cause for the appellant (Riker, Emery & Danzig, Newark, attorneys; George H. Callahan, Newark, on the brief).

Fred A. Lorentz, Newark, argued the cause for the respondent Ligham Const. Co. (Lorentz & Stamler, Newark, attorneys).

Thomas J. Markey, Bloomfield, argued the cause for the respondents Donald H. Scott, Mayor, and others.

The opinion of the court was delivered by

JACOBS, J.

On June 19, 1950 the Town Council of Bloomfield granted a variance to Ligham Construction Company pursuant to a recommendation of the Board of Adjustment under N.J.S.A. 40:55--39(d). This action was attacked in the Law Division but was sustained in an opinion which set forth the pertinent facts and the court's conclusion that the municipal bodies were justified 'in finding special circumstances to warrant the granting of the variance requested, and that not to grant the variance would be an undue hardship.' See 18 N.J.Super. 36, 42, 86 A.2d 613, 616 (1952). On appeal, we held that subsection (d) of N.J.S.A. 40:55--39 constitutionally vested authority in the governing body to grant variances, upon the recommendation of the board of adjustment, 'in particular cases and for special reasons' in accordance with the explicit statutory terms and without reference to the hardship requirement in subsection (c) on variances which may be granted directly by the board of adjustment, acting alone. We determined, however, that there were insufficient findings under subsection (d) and, accordingly, remanded the cause to the board for 'reconsideration, findings and recommendation to the town council.' See 11 N.J. 117, 129, 93 A.2d 385, 390 (1952). After our decision was rendered N.J.S.A. 40:55--39 was amended by the Legislature; however, although it sharply restricted subsection (c) so as to prohibit the board itself from granting any variance which allows a structure or use in a district restricted against such structure or use, it deliberately continued subsection (d) without alteration so as to permit the board 'in particular cases and for special reasons' to recommend for action by the governing body, a variance which allows a structure or use in a district restricted against such structure or use. L.1953, c. 288. See Beirn v. Morris, 14 N.J. 529, 537, 103 A.2d 361 (1954).

On May 14, 1953 the board of adjustment again recommended the granting of the variance; this time its resolution set forth detailed findings and the following special reasons in support of its recommendation:

'1. By reason of the size and unusual shape the lot primarily caused by the conformation of the highway intersection of Broad Street and Watchung Avenue, it is not feasible to sub-divide the area for residential purposes. If the applicant were required so to do such a sub-division would not be in keeping with the plan for the development of the Town and would violate the spirit and purpose of the zoning ordinance.

'2. That the boundary line of the Medium Volume Business Zone divides the lot, permitting general commercial uses (including retail stores) to be made of the 84 feet of the frontage along Broad Street; and, the southerly boundary line of the lot adjoins part of the 200 feet on Watchung Avenue street frontage included within the Medium Volume Business Zone, wherein stores and other structures may be erected for commercial purposes.

'3. That the tract in question is adjacent to a fruit and vegetable stand, a diner and gasoline service station which create special conditions peculiar to the lot, imposing a burden upon the owner if the residential restriction upon the property is enforced.

'4. That Broad Street and Watchung Avenue are main highways, heavily traveled and greatly congested by traffic, and where motor vehicles are allowed to park on both sides of the street; and, by the approval of the development sought herein, including the off-street parking area created thereby will tend to lessen congestion in the streets and afford an opportunity to compel removal of parked cars from the streets in the area as presently required and to meet future demands.

'5. That the foregoing facts established by the evidence corroborates the conclusion of the Board upon personal inspection of the site, which reveals that the location of the lot, its appearance and the atmosphere created by surrounding uses made of the land, fit the pattern of the area for the development of the tract in question as a shopping center with off-street parking to meet the current demands of the commercial and residential area, as well as the future demands when vacant lands within a short distance of this lot are fully developed.

'6. That the adjacent commercial structures and uses render it economically unsound to develop the lands for residential purposes and, if required, would aggravate a hazardous traffic problem which already exists at and near the intersection of Broad Street and Watchung Avenue.

'7. That by allowing the variance sought by the applicant the existing and future needs of the particular area will best be served and that the public off-street parking area provided for, will provide a needed facility in the area to minimize the hazards presently existing and reasonably to be expected by the general growth of the community and the location of streets leading to State Highway 3.

'8. That the 100 foot wide driveway and the 10 foot high planting strip along the northerly and easterly boundary lines of the lot will afford a buffer zone or screen for the parking area and shopping center.

'9. That in granting the application the value of properties in the residential area will not be detrimentally affected; that the maintenance of the open area for off-street parking will promote the general welfare of the community by lessening congestion in the streets and providing the maximum of light and air; that the maintenance of the open space for ingress and egress will minimize the hazard to those entering and leaving the off-street parking area; that the plan for the development of the lot in question is advisable as the most economical use of the property in the interest of the Town of Bloomfield and in keeping with the intent and spirit of the zoning ordinance.

'10. That it is found as a matter of fact that the relief sought is in the public interest and can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'

On June 1, 1953, the town council approved the recommendation for the reasons expressed in the resolution of the board and upon the understanding that the land would be developed in accordance with plans filed with the board and the building inspector. Once again the matter was brought before the Law Division which, on October 30, 1953, sustained the council's action and dismissed the plaintiff's complaint. In the course of his opinion Judge William A. Smith expressed the view that the principal reason for the granting of the variance was that the proposed building was 'for the public good' and that the finding, that the relief sought was in the public interest, could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance, was 'supported by the record.' We likewise find that there is sufficient in the record to preclude appellate disturbance of the governing body's action, supported by the zoning board's findings and recommendation and the affirming determination of the Law Division. See Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 423, 88 A.2d 607, 615 (1952), where this court recently said 'The rationale of the statutory scheme is that the board of adjustment shall supply expert discretion to the matters coming within its cognizance, and judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of the delegated discretion. The reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency and merely substitute its own independent judgment for that of the body entrusted by the Legislature with the administrative function.'

Many other decisions in our State express similar views as to the extent of judicial review in zoning cases. Rexon v. Bd. of Adjustment, Haddonfield, 10 N.J. 1, 7, 89 A.2d 233 (1952); 165 Augusta Street, Inc., v. Collins, 9 N.J. 259, 265, 87 A.2d 889 (1952); Brandt v. Zoning Bd. of Adjustment, Mt. Holly Tp., 16 N.J.Super. 113, 117, 84 A.2d 18 (App.Div.1951).

In the instant matter we are not concerned with an ordinance amendment which would permit not only the contemplated retail shopping center but all other businesses now allowed in the medium volume business zone. Cf. Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954); Conlon v. Board of Public Works, Paterson, 11 N.J. 363, 94 A.2d 660 (1953). Nor are we particularly concerned with precedents under subsection (c) which contain restrictions not embodied in subsection (d). Cf. Beirn v. Morris, supra. The only issue before us is whether, in the light of the special reasons advanced and the supporting evidence, the variance may be deemed to have been granted arbitrarily, capriciously or unreasonably. In passing on this issue we must look at the entire picture and consider the reasons in their aggregate; it is in nowise controlling that one or more of the reasons standing alone would not be legally sufficient. The land in question is near the busy intersection of Broad Street and Watchung Avenue. It is roughly in the form of a right angle triangle, having a frontage of 450 feet on Broad Street, a depth of 423 feet on its northerly boundary, and an hypotenuse of approximately...