Wilson v. Twp. Comm. of Union Tp., Union County

• Citation: 9 A.2d 771,123 N.J.L. 474
• Decision Date: 14 December 1939
• Docket Number: No. 225.,225.
• Parties: WILSON et al. v. TOWNSHIP COMMITTEE OF UNION TP., UNION COUNTY et al.
• Court: New Jersey Supreme Court

9 A.2d 771

123 N.J.L. 474

WILSON et al.

v. TOWNSHIP COMMITTEE OF UNION TP., UNION COUNTY et al.

No. 225.

Supreme Court of New Jersey.

Dec. 14, 1939.

Certiorari by Ella J. Wilson and others against the Township Committee of the Township of Union, in the County of Union, and David Ratzman and others to review the issuance of a building permit recommended by the Board of Adjustment of the Township of Union and granted by the Township Committee and issued by the building inspector to David Ratzman.

Judgment for respondents and writ dismissed.

Argued October Term, 1939, before BROGAN, C. J., and DONGES and PORTER, JJ.

Julius Kwalick, of Elizabeth, for prosecutors.

Charles Wagner, of Elizabeth, for defendants Township Committee of Union Tp., Board of Adjustment of Union Tp., and Building Inspector of Union Tp.

Connolly & Hueston, of Elizabeth, for defendant David Ratzman.

BROGAN, Chief Justice.

A writ of certiorari was allowed to review the issuance of a building permit "recommended by the Board of Adjustment of the Township of Union * * * granted by the Township Committee of the Township of Union * * * and issued by the building inspector * * * on August 24, 1938, to David Ratzman."

The state of case contains a return to the writ and in addition depositions, the taking of which was allowed by order of the Supreme Court, consented to by counsel for all the parties.

The action complained of is that a variance to the zoning ordinance of the Township of Union was ordered by the municipal authorities; and the resolution of the Board of Adjustment, recommending to the Township Committee "the granting of the variation" of the zoning ordinance "so as to permit the erection of a gasoline station" on certain lots on North Avenue, as well as the resolution of the Township Committee approving "the said recommendation of the Board of Adjustment for a variance in the zoning ordinance of Union Township so as to permit the erection of a gasoline station upon lots" on North Avenue, etc., are under review.

The situation existing prior to the variation challenged was that David Ratzman agreed, in writing, to buy said lots from Harry Dill, owner thereof, but only on condition that a permit to erect a gasoline station was obtained. The Building Inspector having refused to issue such building permit, an application for variation from the requirements of the zoning ordinance, verified by Ratzman, was made stating that he had been authorized by Dill, the owner of the land, to make the application in his behalf. The matter was placed before the Board of Adjustment.

At a meeting of that Board on July 11, 1938, all of the present prosecutors owning property within a radius of two hundred feet appeared by counsel. Objections to the variance were heard and discussed. No witnesses were sworn. The matter was put off for a week, at which time the Board passed one of the resolutions under review, recommending to the Township Committee that the variance be granted. The resolution recites "that the Board members inspected the premises involved." Counsel for the prosecutors was present when this resolution was adopted.

This recommendation had the consideration of the Township Committee at its meeting on July 26; decision was reserved "pending further investigation," etc. Subsequently, on August 23, the recommendation of the Board of Adjustment was adopted. Inthe resolution approving the said recommendation it is recited that the governing body had considered the objections, had made investigation of the locality and the adjacent territory, and taken into account "the applicable facts and circumstances." The depositions taken make it quite clear that each of the municipal bodies, whose resolutions are under review, did in fact survey and inspect the neighborhood to be affected by the proposed variance.

The prosecutors argue five reasons for reversal which will be dealt with in the order in which they are argued.

First, it is said that the Board of Adjustment was without jurisdiction to make the recommendation for the change because of improper service of notice on interested property owners. The statute, R.S. 40:55-44, N.J.S.A. 40:55-44, requires five days' notice of the time and place for hearing before an adjustment board. It is conceded in the brief of prosecutors that notice was given by registered mail and also that counsel, when the matter was before the Board, "waived the informality of the notice given," but the argument is that even though counsel did waive any alleged irregularity in the matter of notice, none the less the Board of Adjustment could not acquire jurisdiction by his act. There is no merit in this contention. Notice was admitted. In no instance is it claimed that notice was not received.

Alexander v. Rekoon, 104 N.J.L. 1, 139 A. 796; McKenna v. Harrington Co., 96 N.J. Eq. 700, 126 A. 532; Wilson v. Trenton, 53 N.J.L. 645, 23 A. 278, 16 L.R.A. 200.

Second, it is argued that the Board of Adjustment swore no witnesses, took no testimony, and received nothing in evidence by way of documents, or exhibits touching the matter then under consideration. Moreover it is contended that there was nothing before the Board to show "that a literal enforcement of the ordinance would work undue hardship or be out...