For the prosecutors, Pitney, Hardin & Skinner (Corwin Howell and Worrall F. Mountain, Jr., of counsel).
For the defendants The Board of Commissioners of the Town of Montclair, the Board of Adjustment of the Town of Montclair, and John Picken, building inspector, George S. Harris.
For the defendants Henry R. Kent and Maude D. Kent, Samuel Rosenblatt.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. Prosecutors challenge a resolution adopted by the defendant Board of Adjustment on January 5th, 1939, after hearing on notice, recommending to the governing body of the defendant municipality that a building permit be issued to the defendants Kent "for a group of garden-type apartments on premises known as No. 160 Gordonhurst Avenue,"
in the municipality, conditioned as therein specified, and a resolution of the governing body passed on February 23d ensuing, also after hearing on notice, approving the recommendation thus made, and directing the issuance of a permit, as so conditioned, and subject to the further condition that the municipal building inspector "shall be clothed by the applicant with authority to interpret the conditions laid down by the Board of Adjustment and to require their specific enforcement as so interpreted."
The lands are located in zone "R-1 -- (One Family Zone)" outlined in the zoning ordinance, wherein such use is forbidden, and more than one hundred and fifty feet from the line of any zone in which the proposed use is permissible; and the matter came before the Board of Adjustment on the landowners' appeal from the building inspectors' denial of their application for such permit.
First: There is to be considered, in limine, defendants' contention that the writ should be dismissed for lack of timely application under the statute, and for laches. The point was not treated in the memorandum awarding the allocatur. We find it to be untenable.
Assuming the power of the legislature thus to curtail this court's common law jurisdiction to issue the prerogative writ of certiorari (vide Traphagen v. Township of West Hoboken, 39 N.J.L. 232; Meredith v. Perth Amboy, 63 Id. 520), section 40:55-46 of the Revised Statutes of 1937 has no pertinency here. It decrees that the writ of certiorari shall not issue "to review any decision of the board of adjustment * * * unless application therefor be made within thirty days after the filing of the decision in the office of the board." The action taken by the Board of Adjustment here was not a "decision" within the intendment of this provision; it was a mere "recommendation," inoperative unless approved by the municipal governing body. The case of Crescent Hill, Inc., v. Borough of Allendale, 118 Id. 302, is not applicable. There, the board of adjustment "had declined to grant relief or to recommend to the governing body that the proposed structure be allowed in the restricted area" -- a determination final in character. Certainly, certiorari would not ordinarily,
if ever, issue to review a mere recommendation of the board of adjustment in such a case, unacted upon by the governing body.
Nor was there laches. The initial application for a review by certiorari was made to a justice of this court on March 11th, 1939. It was determined, adversely to prosecutors, on March 13th. Defendants maintain that "it was not until more than seventeen days thereafter" that they "had the first intimation" of prosecutors' intention to apply for the writ to the court en banc. This informal notice was in fact given on April 1st. Formal notice of the application was served on April 21st.
The allegation of laches is grounded in the asserted right of the "builder" to assume, after the expiration of the thirty days' period adverted to, that a review by certiorari would not be available to prosecutors. It is pointed out that, after the expiration of this interval, "it [the 'builder'] took up the option for the property, secured the permit for the demolition of the buildings, proceeded to have its architect prepare detailed specifications, incurring large expense therefor, and upon completion to secure the permit for which it paid the fee of $639." But, as stated, this statutory provision was not applicable, and the defendants therefore were not warranted in proceeding on that hypothesis. Apart from this, the delay is not reasonably comprehended by the term "laches."
Second: It is the prime insistence of prosecutors that the action thus taken by the Board of Adjustment, approved by the municipal governing body, is invalid for lack of jurisdiction. ...