Wm. J. Brennan, Jr., J.s.c.
This is a proceeding in lieu of prerogative writ to set aside a resolution of the Hoboken Board of Adjustment adopted March 9, 1949, purporting to correct a fatal defect in an earlier resolution adopted December 29, 1947, granting a variance from the Hoboken Zoning Ordinance to permit Avenel Industrial Realty Corporation to erect a brick store building on property known as 816-820 Washington Street and 817-825 Bloomfield Street in Hoboken.
Plaintiffs have moved for summary judgment or, alternatively, for restraints against the building of the structure authorized by the variance. At the oral argument defendants sought and were granted permission to move for judgment on the pleadings.
The Board's action of December 29, 1947, granting the variance was set aside by the Appellate Division because of the absence of a finding by the Board that "a literal enforcement of the provisions of the ordinance will result in unnecessary hardship" and the matter was "remanded to the Board of Adjustment for further action in accordance with" the opinion. Protomastro v. Board of Adjustment of the City of Hoboken , 1 N.J. Super. 102, 62 A.2d 694. The mandate entered ordered and adjudged that "the resolution under review be and is hereby set aside * * * and the matter
remitted to the Board of Adjustment for further action in accordance with the opinion * * *."
On or about February 1, 1949, following the coming down of the mandate the Board met with the attorneys for the respective parties. The Board accepted at that meeting an affidavit of the plaintiff Protomastro which reiterated many of the reasons in opposition to the variance originally advanced at the public hearing which preceded the adoption of the December 29, 1947, resolution and added some new matter. Those in attendance were apparently at the meeting by invitation and not pursuant to any formal notice. However, the parties argued again their respective contentions as to the merits of the application for the variance.
On February 3, 1949, the Board met privately and without notice to any party and according to the minutes of that date defeated by a vote of 3-2 a motion that "a variance be granted to the Avenel Industrial Realty Corporation in accordance with the opinion of the Superior Court of New Jersey, Appellate Division."
Defendants thereupon gave notice that a motion would be made March 14, 1949, before the Appellate Division for directions to the Board as respects said action in light of the opinion and mandate of the Appellate Division. This motion was withdrawn because the Board met on March 9, 1949, and the four members who had voted affirmatively for the December 29, 1947, resolution adopted the corrective resolution challenged here.
The March 9 resolution recites the events preceding the adoption of the December 29, 1947, resolution, states that "no statement of the reason or reasons which prompted the action was given in the minutes" and recites also the result of the proceedings before the Appellate Division. It then continues:
"WHEREAS, subsequent thereto, under a misapprehension as to the meaning and effect of the said opinion heretofore referred to, the Board of Adjustment held an informal hearing on February 1, 1949 concerning the said opinion and at said hearing permitted Edward Stover, Esq., to file an affidavit presenting new considerations to the said Board of Adjustment: and --
"WHEREAS, on February 3, 1949, laboring under said misapprehension and without consideration of the former record, the Board of Adjustment had failed to adopt a resolution ...