On appeal from the Law Division of the Superior Court, whose opinion is reported in 14 N.J. Super. 537.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.
The plaintiff landowner complains of the judgment of the Superior Court, in a civil proceeding at law in lieu of certiorari pursuant to Rule 3:81-2 of this court, adjudging as ultra vires and void two resolutions of the governing body of the City of Summit adopted June 16, 1942, and July 7, 1942, on the recommendation of the local board of adjustment, purporting to grant on certain terms and conditions an "exception" to the terms of the local zoning ordinance for the use of part of plaintiff's lands and the buildings thereon, remodeled or reconstructed as therein particularized, for the "production, finishing and assembling" of "small mechanical precision devices and instruments" and the associated laboratory for research and experimental purposes, and affirming the action of the local board of adjustment taken February 20, 1951, refusing a continuance of the exception for this industrial use on the grounds (a) that such use "would be substantially detrimental to the public good and would impair the intent and purpose" of the local "zone plan and zoning ordinance," and (b) there was no showing of undue hardship.
The case is here by certification on our own motion of an appeal taken by plaintiff to the Appellate Division of the Superior Court.
The locus comprises in excess of 15 acres of land situate at the southwest corner of the Morris and Essex Turnpike and River Road in the City of Summit, bounded on the west by the Passaic River, in an "A-10 Residential Zone" delineated by the local zoning ordinance for single-family dwellings. The application for the exception was made by plaintiff, but title to the lands was not taken until June 25, 1942, presumably under a contract of sale whose consummation was conditioned upon the prior allowance of a variance or exception in the terms indicated. The exception was conditioned thus: "In [8 NJ Page 391] the event of the bankruptcy or judicial determination of insolvency of the grantee, or the sale or transfer of the premises to any person other than the present stockholders of the grantee, their personal representatives, heirs at law and next of kin, legatees and devisees or a transferee by operation of law," or "in the event that use of the premises for the laboratory and business activities of the grantee as described above or such future laboratory and business activities as may be necessarily incidental thereto is discontinued, the right to use the premises for the non-residential purposes set forth in this paragraph shall terminate; provided, however, that such use may be continued thereafter to the extent, in the manner and for the period authorized by" the local board of adjustment "in its discretion, reasonably exercised, and may be continued without such authorization if the premises are at that time situated in a district designated by" the zoning ordinance "as a business or industrial district." There were requirements that the plaintiff corporation or the "occupant of the premises," as the case may be, submit to the local board of adjustment written bi-annual reports "describing the nature of its business and industrial operations on" the premises "and certifying * * * that the foregoing restrictions and limitations are being adhered to," and also that the deed of conveyance to the plaintiff corporation thereafter to be made contain the foregoing conditions as covenants and agreements by the grantee, for itself, its successors and assigns, "and for the benefit of the grantor, the City of Summit, New Jersey, the owners of residential properties abutting the premises and neighboring residential properties, situated in the area of Summit, New Jersey, known as the 'Canoe Brook Parkway' area, their heirs, personal representatives, successors and assigns"; also these further conditions: that for a period of 20 years from the date of the delivery of the deed of conveyance to the plaintiff corporation, except as provided in the granted exception, no building then on the premises or thereafter erected thereon shall be used for any purpose other than as a detached
one-family private residence or as a garage used in connection with such residence; and that in case of subdivision the lots and buildings shall meet the minima as to size and floor area therein prescribed, and no building or structure shall be erected on the premises "within 200 feet easterly of the east bank of the Passaic River" without the written approval of the board of adjustment. The board of adjustment also recommended that no building permit be issued to plaintiff until there was filed with the city clerk a certified copy of a deed of conveyance of the lands to plaintiff "embodying the foregoing covenants and restrictions," and that it be required that the property "be landscaped and maintained as a park, as agreed by" plaintiff. The governing body, by resolution adopted June 16, 1942, approved the recommendation of an exception to plaintiff thus made "subject to limitations, restrictions and agreements" as therein set down. The resolution of July 7 ensuing approved an amendment recommended by the board of adjustment to provide for the incorporation of the foregoing terms and conditions in the deed of conveyance as "covenants and restrictions," and for the landscaping and maintenance of the "property * * * in such a way as to give it the appearance of a private park," in keeping with plaintiff's undertaking. The conveyance to plaintiff was conditioned accordingly.
The gravamen of the complaint is that, in reliance upon the "variance" so provided, plaintiff acquired title to the lands, and thereafter, in 1943, under permits issued by the local authority, erected a brick building thereon "especially designed for its laboratory, industrial and manufacturing purposes" and a building providing facilities for its employees, and has since made such use of the premises, and the refusal of a continuance of the variance would defeat an advantageous sale of the lands presently made by plaintiff conditioned upon its continuance and in the circumstances is capricious, arbitrary and unreasonable. One of the conditions attached to the variance is in part a restraint upon alienation; and its excision is prayed on that account. The City of Summit
was given leave to intervene as a party defendant. The board of adjustment and the city each filed an answer and counterclaim praying that the resolution of the board of adjustment purporting to grant the variance in question and the approving resolutions of the governing body be adjudged null and void as excesses of power, and, at all events, that the variance be adjudged terminated by reason of the discontinuance on January 1, 1950, of plaintiff's "industrial and business activities" on the premises, and for violations of the conditions in certain particulars which need not be stated. The cessation of the permitted variant use is established by the proofs. Indeed, that seems to be conceded. Plaintiff had more than 200 employees in the prosecution of the enterprise at the time of the grant of the variance, but only three or four in May, 1950, and thereafter. Manufacturing was discontinued.
The mere recital of the circumstances demonstrates the vice of the purported exception cited by the landowner. The action thus taken was coram non judice and void. The local authority did not undertake to grant a variance from the terms of the ordinance grounded in the statutory consideration of "unnecessary hardship," or an exception according to a standard set by the ordinance in keeping with the statutory policy (e.g., Schnell v. Township Committee of Ocean, 120 N.J.L. 194 (Sup. Ct. 1938), but rather to confer an exception extra the statute and the ordinance to serve the interests of the landowner in matters foreign to the principle and policy of zoning as declared by the statute and invoked by the ordinance. The action constituted a special exemption from the operation of the zoning regulation for a limited period pursuant to an agreement made between plaintiff and the local authority prior to the conveyance of the lands under the cited contract providing for a transfer of the title only in the event of the grant of a variance permitting the forbidden use. There was no finding of undue hardship. Indeed, the action under review was not professed to be an exercise of the statutory power to
authorize a variance from the general regulation where, due to "special conditions a literal enforcement of the zoning ordinance would result in ...