For the prosecutor, Louis Gerber (Sidney Goldmann, of counsel).
For the defendants, Edgar S. Smith (George Gildea, of counsel).
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
HEHER, J. Prosecutor challenges the action of the defendant board of adjustment in denying his application for leave to convert his single-family dwelling house designated as No. 80 Stockton Street, in the Borough of Princeton, into a two-family apartment house "within the present structure and framework of the dwelling." The house is located in a residential district ("Residence 'A'") zoned against two-family dwellings by a local ordinance enacted on January 17th, 1941, under R.S. 40:55-30, et seq.
This is the history of the proceedings before the zoning board, as shown by the board's minutes incorporated in the return to the writ of certiorari: On April 24th, 1944, prosecutor, by letter addressed to the board, made "application" for the desired permit, after the local building inspector had refused it. The letter was accompanied by a "sketch" showing that the proposed alterations would comply with the conditions of section 7(1) of the ordinance as to cubical content and exterior changes. The application came on for hearing at a regular meeting of the board held on May 15th, 1944, in the presence of prosecutor. The letter was read, and prosecutor "Laborated on his plans of making two apartments, [133 NJL Page 232] "elaborated on his plans of making two apartments, one above the other, stating that while a portion of the house was about six inches from the east property line, it had always been that way;" and "it was brought out that the house was only about four feet from the one at 78 Stockton Street." After prosecutor stated that he had "nothing further to add," the board considered the matter in "executive session" and concluded that the application should be denied "on the grounds that it does not conform to the side-yard requirements of the ordinance." It was "pointed out" in the course of the executive conference that "houses in this neighborhood, especially on Edgehill Street, were nonconforming, some being very close," and that "if approval were given to this application it might start a run of applications for two-family apartments in this neighborhood, turning single houses with small side-yards into two-family apartments;" that the board "had turned down several applications for turning single houses into multiple family houses because of the lack of side-yard requirements, even in the 'B' District;" and that "side-yard requirements increase as the number of families increase." It was "generally agreed" that the approval of this application "would set a bad precedent." On the ensuing May 24th, a rehearing was had at a special meeting of the board, held at the instance of prosecutor. It was there contended by the latter's attorney that section 7(1) of the ordinance laid down no requirement as to side yards, and that the board "had no discretion except to grant the application once it was shown that the dwelling complied with section 7 as to cubical content and as to the absence of exterior alterations." The board here directed attention to the applicant's failure to provide "a plan drawn to scale, showing the proposed building in its exact relation to lot and street lines," as required by section 8(c) of the ordinance, notwithstanding that the omission had been brought to his notice, and he had promised to supply it. And it was observed by board members that there were "six or eight similar houses on Mercer Street and at least five or seven similar houses on Edgehill Street that would have just as much right as this house, and that they were hazardous;" that "about 60 residents of Residence 'A' District" had filed
a protest against "two-family houses in this district;" and that the board "had turned down 90% of the requests for conversion of single-family dwellings into two-family dwellings in order to preserve the general character of Princeton." The board again denied the application. It "considered the ordinance as a whole;" and it grounded its disapproving action upon the necessity of preserving "the general character of the neighborhood, the protection of property values and the consideration of public comfort and convenience."
No evidence was presented by prosecutor; nor did he offer evidence bearing upon the issues raised. The return to the writ of certiorari has been supplemented by depositions taken without leave of the court. Thereby it was sought to introduce issues not tendered in the proceeding before the board of adjustment; and this was improper, as will presently appear.
The fundamental point made by prosecutor is that the decision thus taken was arbitrary, unreasonable and discriminatory, in that it was "contrary to the express provisions" of the ordinance and the "intent and purpose thereof, as well as the intent and purpose" of the Zoning Act, and also transcended the provisions of the federal and state constitutions guaranteeing due process of law and the equal protection of the laws. Briefly stated, the matters adduced in support of this contention are that the board "had previously granted permission in the same Residence 'A' District for conversions to two-family apartment premises in at least five cases;" that a community clubhouse, used for teas, bridge parties, dances, art exhibits, and the like, and a "gift shop" are located in the same district, not far away; and that the Borough of Princeton is confronted with a "critical housing shortage" as a result of the recent establishment of industries nearby and the training of army and navy personnel at the university.
Prosecutor's brief terms his application for relief addressed to the adjustment board an "appeal" from the adverse action of the zoning officer, but it was not an appeal in the technical sense. He did not invoke the jurisdiction conferred by R.S. 40:55-39a, 40:55-39c or 40:55-39d (counsel considers these sections inapplicable), but rather the ...