Ward v. Scott

• Citation: 11 N.J. 117,93 A.2d 385
• Decision Date: 15 December 1952
• Docket Number: No. A--18,A--18
• Parties: WARD v. SCOTT et al.
• Court: United States State Supreme Court (New Jersey)

Page 117

11 N.J. 117

93 A.2d 385

WARD v. SCOTT et al.

No. A--18.

Supreme Court of New Jersey.

Argued Sept. 30, 1952.

Decided Dec. 15, 1952.

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

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

Thomas J. Markey, Bloomfield, for respondents, Town Council, Board of Adjustment and Brooks C. Martin, Building Inspector, Town of Bloomfield.

The opinion of the court was delivered by

JACOBS, J.

The Town Council of Bloomfield granted a variance to Ligham Construction Company pursuant to a recommendation of the board of adjustment under R.S. 40:55--39(d), N.J.S.A.; the Law Division sustained this action, and the ensuing appeal by the plaintiff George B. Ward has been certified to this court on its own motion.

In 1949 Economy Built Homes Corporation, a company controlled by Saul T. Ligham, purchased a large tract of land on the northeast side of Broad Street, Bloomfield, for a residential development known as Hearthstone Village. Included within this tract was property located near the busy intersection of Broad Street and Watchung Avenue and conveyed in 1950 to Ligham Construction Company, which is likewise controlled by Saul T. Ligham. This property has a frontage of 450 feet on Broad Street; 84 feet thereof nearest the aforementioned intersection is within a medium volume business zone and the remainder is within a residential zone. Further description thereof appears in the opinion of the Law Division reported in Ward v. Scott, 18 N.J.Super. 36, 38, 86 A.2d 613 (1952) and need not be restated here.

In 1950 Ligham Construction Company made application to the Building Inspector of Bloomfield for a permit to erect a commercial building and off-street parking facility on its property. This application was denied and a petition of appeal was duly filed with the local board of adjustment. The petition alleged that the location of the proposed building was 'adjacent to existing business and the general location is in a concentrated commercial section at the juncture of Broad Street and Watchung Avenue'; that within the neighborhood there had been and would be substantial residential development requiring additional commercial facilities; that the proposed parking lot would be the only off-street parking facility in the area and would 'virtually eliminate all existing congestion in the area?; and that the proposed use would contribute to 'the convenience and welfare of the ever increasing number of persons living in the general area.' After hearing, the board of adjustment adopted a resolution which found 'as a fact that by reason of the proximity of other commercial buildings to the lands and premises in question, that exceptional circumstances are present' justifying relief and recommended to the town council that a variance be granted. The board also found that granting the variance would 'not be a substantial detriment to the public good' and would 'not impair the intent and purpose of the Zoning Ordinance.' On June 19, 1950 the town council approved the recommendation of the board of adjustment and directed the building inspector to issue the necessary permit.

In his complaint in the Law Division the plaintiff, a resident in the neighborhood, alleged that the actions of the board of adjustment and town council were invalid and should be set aside. Paragraph 11 set forth that Ligham Construction Company had not established 'unnecessary hardship,' and paragraph 15 set forth that if the Zoning Act is construed to permit the board of adjustment to recommend a variance without a previous finding of unnecessary hardship then it is unconstitutional. In dismissing the complaint the Law Division questioned the necessity, under R.S. 40:55--39(d), N.J.S.A., of a finding of undue hardship (18 N.J.Super. 36, 43, 86 A.2d 613, 616 (1952) but concluded that in any event the towwn 'did think that this was a case of undue hardship.' On the plaintiff's appeal from the judgment entered in the Law Division the issues requiring our present determination are: (1) is the recent construction of R.S. 40:55--39(d), N.J.S.A., in Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 87 A.2d 9 (1952) now to be rejected; (2) if not, is R.S. 40:55--39(d), N.J.S.A. to be declared unconstitutional as lacking in sufficient legislative standards to guide the board of adjustment and the municipality; and (3) did the board of adjustment make adequate jurisdictional and factual findings within the requirements of R.S. 40:55--39(d), N.J.S.A.

I

In the Monmouth Lumber case Justice Burling reviewed the history of R.S. 40:55--39 with particular reference to its recent extensive revision in L.1948, c. 305 and L.1949, c. 242, N.J.S.A. As he pointed out, subsection (c) provides that the board of adjustment may grant a variance where, by reason of the extraordinary situation or condition of the property, the strict application of the zoning restrictions would result in 'peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner'; in contrast, however, subsection (d) omits the specific requirement for a showing of practical difficulties or undue hardship and provides that 'in particular cases and for special reasons' the board of adjustment may recommend to the governing body of the municipality that a variance be granted. Unlike subsection (c) action taken by the board of adjustment under subsection (d) is subject to approval or disapproval by the municipality, and no variance may be permitted under either subsection unless it '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.' See Leimann v. Board of Adjustment, Cranford Tp., 9 N.J. 336, 341, 88 A.2d 337 (1952); Gerkin v. Village of Ridgewood, 17 N.J.Super. 472, 477, 86 A.2d 275 (App.Div.1952), certification denied 9 N.J. 404, 88 A.2d 537 (1952).

The legislative purpose appears clear and appropriately expressed. Where the prescribed showing of extraordinary condition of the property and undue hardship is made the board of adjustment may itself, under subsection (c), grant the variance without submission to the municipal governing body. Where, however, there are 'special reasons' within the contemplation of the act, the board of adjustment may, without regard to the rigid requirements of subsection (c), simply recommend a variance for approval or disapproval by the municipality. The legislature deliberately withheld from subsection (d) the undue hardship requirement which it included in subsection (c), and we are not at liberty to disregard its clear statutory language and meaning. We now reaffirm the views fully expressed, without dissent on this issue, in the Monmouth Lumber case. Cf. Glasser, Administrative Law, 7 Rutgers L.Rev. 66 (1952) where the author notes that the New Jersey 'courts this year have expressly held (to the apparent surprise of many municipal attorneys, although the statutory language would seem to be clear) that where the Recommendation procedure of N.J.Rev.Stat. 40:55--39(d), N.J.S.A., is followed by a board of adjustment, there need be no finding of unnecessary hardship.' See Beck v. Board of Adjustment of East Orange, 15 N.J.Super. 554, 560, 83 A.2d 720 (App.Div.1951).

II

The appellant contends that R.S. 40:55--39(d), N.J.S.A., is unconstitutional. He does not question the general right of the Legislature to delegate power to the board of adjustment to recommend a variance subject to approval or disapproval of the municipality. Cf. Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927). He contends, however, that such delegation to the municipal administrative agency must be accompanied by a sufficient basic standard (Van Riper v. Traffic Telephone Workers' Federation of New Jersey, 2 N.J. 335, 353, 66 A.2d 616, 9 A.L.R.2d 854 (1949)), and that subsection (d) as interpreted in the Monmouth Lumber case fails to set forth such standard. In dealing with the question of standards it is elementary that we are not confined to the specific terms of subsection (d) but must examine the entire act in the light of its surroundings and objectives. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. --- (1952). Nor are we restricted to the ascertainment of standards in express terms if they may be reasonably implied from the entire act. See Brandon v. Montclair,124 N.J.L. 135, 143, 11 A.2d 304, 309 (Sup.Ct.1940) affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A.1940), where Justice Heher rightly noted that 'A statute often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner. That which is clearly implied is as much a part of the law as that which is expressed.' See also West Jersey & Seashore Railroad Company v. Board of Public Utility Commissioners, 87 N.J.L. 170, 94 A. 57 (E. & A.1915). On the present issue this wholesome doctrine may receive support not only from the general presumption of the validity of legislation (Attorney General v. McGuinness, 78 N.J.L. 346, 371, 75 A. 455 (E. & A.1910)), but also from Article IV, Section VII, paragraph 11 of our Constitution of 1947 which states that the provisions of the Constitution and of any law concerning municipal corporations 'shall be liberally construed in their favor.'

It is settled that the Legislature may not vest unbridled or arbitrary power in the administrative agency but must furnish a reasonably adequate standard to guide it. N.J.Bell Tel. Co. v. Communications Workers, etc., 5 N.J. 354, 370, 75 A.2d 721 (1950); State v. Wheeler Auto Driving School, Inc., 17 N.J.Super. 488, 495, 86 A.2d 442 (App.Div.1952). But the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in...