For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
This appeal involves a variance from a provision of a zoning ordinance respecting a set back line, and we conclude the judgment of the Superior Court, Appellate Division, should be affirmed for the reasons expressed in its opinion, 2 N.J. Super 45, 64 A.2d 462, supplemented as follows:
Appellants argued orally before us and in their briefs that the Board of Adjustment, having made an inspection of the premises in question and the properties in its immediate neighborhood, the members thereof were therefore, from the personal knowledge obtained from that inspection, entitled to grant the variance asked for.
We approve of the practice, where practical, of a board of adjustment making an inspection of the site and the neighborhood generally. Amon v. Rahway, 117 N.J.L. 589 (Sup. Ct. 1937). Such first hand knowledge is invaluable in the determination of zoning cases but the knowledge thus gained cannot be made the basis, in whole or in part, for the award
of a variance or a change in a zoning ordinance unless there appears in the record the facts respecting the physical situation disclosed by the inspection.
No determination can be permitted to rest upon undisclosed findings or information dehors the record. If such could be the parties would be denied the essence of a hearing, they would be kept in ignorance of the things controlling the action of the board, and due process would be flouted. The rights of the parties can only be protected, both in the trial tribunal and on review, by a full disclosure on the record of the facts relied upon for the board's findings. Scaduto v. Bloomfield, 127 N.J.L. 1 (Sup. Ct. 1941); P.R.R. Co. v. N.J. State Aviation Comm. et al., 2 N.J. 64.
A motion was made before us by prosecutor-respondent to dismiss this appeal on the ground that the judgment appealed from is not such a judgment from which an appeal can be taken to this court under the Constitution, the statutes or the Supreme Court rules.
This motion was held pending argument on the merits and while not necessary for the disposition of this particular case we deem the question of such importance to the bar, and particularly as it has caused much confusion, we will dispose of it.
The writ of certiorari in this case issued on May 26, 1948. The cause was transferred to the Appellate Division of the Superior Court by the operation of article XI, section IV, paragraph 8(b), Constitution (1947), and P.L. 1948, c. 367, § 14. The cause was argued on January 31, 1949, before the Appellate Division of the Superior Court and was decided March 15, 1949.
The respondent argues that an appeal does not lie to this court from such a judgment of the Appellate Division under article VI, section V, paragraph 1, Constitution (1947). Clearly this would be so if this proceeding was instituted subsequent to September 15, 1948, since the judgment of the Appellate Division would be on appeal from the Law ...