On complaint in lieu of prerogative writ. On motion and cross-motion for summary judgment.
This suit, in lieu of the old writ of certiorari , seeks to review the legality of the action of C. Alfred Bates, Zoning Officer of the City of Newark, in having approved, and the action of Frederick Bigelow, Building Inspector of the City of Newark, in having issued on July 2, 1951, a permit to the defendant Essex County Ritualarium Synagogue, an unincorporated association, authorizing alterations in the one-family dwelling house erected at 130 Renner Avenue in the City of Newark by constructing therein ritual pools or a mikvah to be used for ritualistic bathing and to be built below the first floor level of the building, and for use of the said building as a place for ritualistic bathing, mostly by Hebrew females. The suit also challenges the action of the Board of Adjustment of the City of Newark, to which an appeal had been taken, in deciding the matter adversely to the appellants therein, plaintiffs in the present suit, and in having upheld the action of the building inspector in issuing the permit in question.
The premises in question are located in the first residence district of the City of Newark, as described in the zoning ordinance, section 3 of which ordinance regulates construction and use of buildings in that district as follows:
"Section 3: USE REGULATIONS CONTROLLING FIRST RESIDENCE DISTRICTS
In a First Residence District no building or premises shall be used, and no building shall be erected, in whole or in part for any industrial, manufacturing or commercial purpose, or for any other than the following specified purposes:
(a) Single family detached residence buildings not less than two and one-half (2 1/2) stories in height.
(b) The office of a physician, surgeon or dentist when situated in the same building used by such physician, surgeon or dentist as his private residence.
(d) Schools, libraries or public museums.
(e) Accessory uses customarily incident to the above uses, the term accessory use, however, not including a business or any building or use, not located on same lot with the building to which it is accessory. A private garage, as herein defined, shall be permitted as an accessory use."
Plaintiffs contend that the issuance of the permit in question constitutes a clear violation of the provisions of section 3 of said ordinance, but defendants contend that the permit was properly issued because the mikvah or ritualarium is a church where religious rites are practiced and prayers are said and that sub-paragraph c of section 3 of the ordinance authorizes the construction of churches in the first residence district.
Plaintiffs, property owners in the first residence district, filed on August 2, 1951, an appeal from the determination of the zoning officer and building inspector to the board of adjustment, pursuant to the provisions of the statute, R.S. 40:55-42. Hearings on the appeal were had before the board of adjustment on October 4 and October 18, 1951, and on November 1, 1951, the board of adjustment rendered a decision sustaining the issuance of the building permit and dismissing the appeal, the decision having taken the form of a motion duly adopted and which reads as follows:
"that the Board of Adjustment sustain the action of the superintendent of buildings in issuing a permit for the alteration of the dwelling at 130 Renner Avenue to incorporate therein facilities for ritualarium purposes, which are part of the Jewish religion and, therefore, within the permitted uses in a first residence district, and that the appeal thereon be dismissed."
Plaintiffs make the point that by the terms of the statute, R.S. 40:55-45, more than 90 days having expired between the date of the filing of the appeal on August 2 and the rendition of the board's decision on November 1, 1951, the board had no power to render a decision, but that, nevertheless, the failure of the board to render a decision within the required statutory period shall be deemed to be a decision adverse to the appellants (plaintiffs in the present suit), as
though the said board had rendered a decision to that effect. In either case, the net result is a decision by the board of adjustment adverse to the contention of the appellants there, plaintiffs here.
On November 2, 1951, plaintiffs filed a verified complaint in which they seek to have the court reverse and set aside the action of the city authorities in granting the permit in question; restrain defendants from proceeding, pendente lite , under the apparent authority of said permit, with the alteration of the said building at 130 Renner Avenue, Newark, N.J.; permanently restraining the ritualarium from converting the dwelling house at 130 Renner Avenue into a mikvah by the construction of ritualistic pools; and to restrain the city authorities from hereafter issuing any permits for the construction of ritualistic pools or mikvahs in the said premises at 130 Renner Avenue. Upon the filing of the verified complaint, the court allowed an order to show cause on November 2, 1951, returnable November 9, 1951, with temporary restraint, in order to preserve the status quo. The temporary restraint has been continued from time to time pending final determination of this cause.
Affidavits in support of their respective positions have been submitted by plaintiffs and by the ritualariums and a certified transcript of the evidence taken before the board of adjustment on the appeal has been filed with the court; and at a hearing on the matter on November 26, 1951, counsel for the respective parties stipulated that the matter was submitted for final determination by the court on the pleadings, the affidavits on file and a certified record of the proceedings before the Board of Adjustment of the City of Newark, subject, however, to reservation by plaintiffs' attorney stating his objections to consideration by the court of statements contained in the record of the hearings before the board of adjustment that do not constitute legal evidence. The record of the proceedings before the city authorities is not complete in that there has not been filed with the court the application for the building permit, nor the permit as
issued and concerning which the present litigation is pending. However, the contents of the application and of the permit sufficiently appear from the testimony given before the board of adjustment, and in the affidavits filed, to enable the court to pass upon the matter.
Upon the pleadings, the affidavits on file, the record on the appeal before the board of adjustment, and the foregoing stipulation by counsel, ...