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Ward v. Scott

Decided: December 15, 1952.


For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting). Mr. Chief Justice Vanderbilt and Mr. Justice Brennan join in this dissent. Heher, J., Vanderbilt, C.J., and Brennan, J., concur in reversal and would remand with direction to enter judgment for plaintiff.


The Town Council of Bloomfield granted a variance to Ligham Construction Company pursuant to a recommendation of the board of adjustment under R.S. 40:55-39(d); the Law Division sustained this action, and the ensuing appeal by the plaintiff George B. Ward has been certified to this court on its own motion.

In 1949 Economy Built Homes Corporation, a company controlled by Saul T. Ligham, purchased a large tract of land on the northeast side of Broad Street, Bloomfield, for a residential development known as Hearthstone Village. Included within this tract was property located near the busy intersection of Broad Street and Watchung Avenue and conveyed in 1950 to Ligham Construction Company, which is likewise controlled by Saul T. Ligham. This property has a frontage of 450 feet on Broad Street; 84 feet thereof nearest the aforementioned intersection is within a medium volume business zone and the remainder is within a residential zone. Further description thereof appears in the

opinion of the Law Division reported in Ward v. Scott, 18 N.J. Super. 36, 38 (1952) and need not be restated here.

In 1950 Ligham Construction Company made application to the Building Inspector of Bloomfield for a permit to erect a commercial building and off-street parking facility on its property. This application was denied and a petition of appeal was duly filed with the local board of adjustment. The petition alleged that the location of the proposed building was "adjacent to existing business and the general location is in a concentrated commercial section at the juncture of Broad Street and Watchung Avenue'; that within the neighborhood there had been and would be substantial residential development requiring additional commercial facilities; that the proposed parking lot would be the only off-street parking facility in the area and would "virtually eliminate all existing congestion in the area'; and that the proposed use would contribute to "the convenience and welfare of the ever increasing number of persons living in the general area.' After hearing, the board of adjustment adopted a resolution which found "as a fact that by reason of the proximity of other commercial buildings to the lands and premises in question, that exceptional circumstances are present' justifying relief and recommended to the town council that a variance be granted. The board also found that granting the variance would "not be a substantial detriment to the public good' and would "not impair the intent and purpose of the Zoning Ordinance.' On June 19, 1950 the town council approved the recommendation of the board of adjustment and directed the building inspector to issue the necessary permit.

In his complaint in the Law Division the plaintiff, a resident in the neighborhood, alleged that the actions of the board of adjustment and town council were invalid and should be set aside. Paragraph 11 set forth that Ligham Construction Company had not established "unnecessary hardship,' and paragraph 15 set forth that if the Zoning Act is construed to permit the board of adjustment to recommend a

variance without a previous finding of unnecessary hardship then it is unconstitutional. In dismissing the complaint the Law Division questioned the necessity, under R.S. 40:55-39(d), of a finding of undue hardship (18 N.J. Super. 43) but concluded that in any event the town "did think that this was a case of undue hardship.' On the plaintiff's appeal from the judgment entered in the Law Division the issues requiring our present determination are: (1) is the recent construction of R.S. 40:55-39(d) in Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64 (1952), now to be rejected; (2) if not, is R.S. 40:55-39(d) to be declared unconstitutional as lacking in sufficient legislative standards to guide the board of adjustment and the municipality; and (3) did the board of adjustment make adequate jurisdictional and factual findings within the requirements of R.S. 40:55-39(d).


In the Monmouth Lumber case Justice Burling reviewed the history of R.S. 40:55-39, with particular reference to its recent extensive revision in L. 1948, c. 305 and L. 1949, c. 242. As he pointed out, subsection (c) provides that the board of adjustment may grant a variance where, by reason of the extraordinary situation or condition of the property, the strict application of the zoning restrictions would result in "peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner'; in contrast, however, subsection (d) omits the specific requirement for a showing of practical difficulties or undue hardship and provides that "in particular cases and for special reasons' the board of adjustment may recommend to the governing body of the municipality that a variance be granted. Unlike subsection (c), action taken by the board of adjustment under subsection (d) is subject to approval or disapproval by the municipality, and no variance may be permitted under either subsection unless it "can be granted

without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.' See Liemann v. Board of Adjustment, Cranford Tp., 9 N.J. 336, 341 (1952); Gerkin v. Village of Ridgewood, 17 N.J. Super. 472, 477 (App. Div. 1952), certification denied 9 N.J. 404 (1952).

The legislative purpose appears clear and appropriately expressed. Where the prescribed showing of extraordinary condition of the property and undue hardship is made the board of adjustment may itself, under subsection (c), grant the variance without submission to the municipal governing body. Where, however, there are "special reasons' within the contemplation of the act, the board of adjustment may, without regard to the rigid requirements of subsection (c) simply recommend a variance for approval or disapproval by the municipality. The Legislature deliberately withheld from subsection (d) the undue hardship requirement which it included in subsection (c), and we are not at liberty to disregard its clear statutory language and meaning. We now reaffirm the views fully expressed, without dissent on this issue, in the Monmouth Lumber case. Cf. Glasser, Administrative Law, 7 Rutgers L. Rev. 66 (1952), where the author notes that the New Jersey "courts this year have expressly held (to the apparent surprise of many municipal attorneys, although the statutory language would seem to be clear) that where the recommendation procedure of N.J. Rev. Stat. 40:55-39(d), N.J.S.A., is followed by a board of adjustment, there need be no finding of unnecessary hardship.' See Beck v. Board of Adjustment of East Orange, 15 N.J. Super. 554, 560 (App. Div. 1951).


The appellant contends that R.S. 40:55-39(d) is unconstitutional. He does not question the general right of the Legislature to delegate power to the board of adjustment to recommend a variance subject to approval or disapproval

of the municipality. Cf. Gorieb v. Fox, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228 (1927). He contends, however, that such delegation to the municipal administrative agency must be accompanied by a sufficient basic standard (Van Riper v. Traffic Telephone Workers Federation of New Jersey, 2 N.J. 335, 353 (1949)), and that subsection (d) as interpreted in the Monmouth Lumber case fails to set forth such standard. In dealing with the question of standards it is elementary that we are not confined to the specific terms of subsection (d) but must examine the entire act in the light of its surroundings and objectives. See Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. (1952). Nor are we restricted to the ascertainment of standards in express terms if they may be reasonably implied from the entire act. See Brandon v. Montclair, 124 N.J.L. 135, 143 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940), where Justice Heher rightly noted that "A statute often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner. That which is clearly implied is as much a part of the law as that which is expressed.' See also West Jersey and Seashore Railroad Company v. Board of Public Utility Commissioners, 87 N.J.L. 170 (E. & A. 1915). On the present issue this wholesome doctrine may receive support not only from the general presumption of the validity of legislation (Attorney General v. McGuinness, 78 N.J.L. 346, 371 (E. & A. 1910)), but also from Article IV, Section VII, paragraph 11 of our Constitution of 1947 which states that the provisions of the Constitution and of any law concerning municipal corporations "shall be liberally construed in their favor.'

It is settled that the Legislature may not vest unbridled or arbitrary power in the administrative agency but must furnish a reasonably adequate standard to guide it. N.J. Bell Tel. Co. v. Communications Workers, etc., 5 N.J. 354, 370 (1950); State v. Wheeler Auto Driving School, Inc., 17 N.J. Super. 488, 495 (App. Div. 1952). But the exigencies of modern government have increasingly dictated

the use of general rather than minutely detailed standards in regulatory enactments under the police power. Thus, the Board of Public Utility Commissioners has been guided by simple standards of "public convenience and necessity' (R.S. 48:11-1) and "just and reasonable.' R.S. 48:2-21. See Fornarotto v. Board of Public Utility Commissioners, 105 N.J.L. 28, 32 (Sup. Ct. 1928). The Commissioner of Alcoholic Beverage Control, with authority to fix prices and promulgate regulations (Gaine v. Burnett, 122 N.J.L. 39 (Sup. Ct. 1939), affirmed 123 N.J.L. 317 (E. & A. 1939)), has been guided by the general legislative pronouncement that the statute shall be administered in "such a manner as to promote temperance and eliminate the racketeer and bootlegger.' R.S. 33:1-3, 39. And the Director of the Milk Control Board has been authorized to take such measures including the fixing of prices and the promulgation of regulations as may be "necessary to control or prevent unfair, unjust, destructive or demoralizing practices which are likely to result in the demoralization of agricultural interests in this State engaged in the production of milk or interfere with the maintenance of a fresh, wholesome supply of sanitary milk for the consumers of this State.' See R.S. 4:12 A -21; State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 521 (E. & A. 1935); Como Farms, Inc. v. Foran, 6 N.J. Super. 306, 312 (App. Div. 1950). See also Veix v. Seneca B. & L. Assn., 126 N.J.L. 314, 323 (E. & A. 1941); Borough of Little Ferry v. Bergen County Sewer Authority, 9 N.J. 536, 544 (1952).

Standards embodied in federal enactments and approved by the Supreme Court of the United States have been of similar breadth. See American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 104, 67 S. Ct. 133, 91 L. Ed. 103, 115 (1946); Lichter v. United States, 334 U.S. 742, 786, 68 S. Ct. 1294, 92 L. Ed. 1694, 1726 (1948). In the Lichter case the court, in sustaining an "excessive profits' standard, listed other general standards which have been held adequate, including "just and reasonable'

(Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 600, 64 S. Ct. 281, 88 L. Ed. 333, 344 (1944)), prices yielding a "fair return' (Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 397, 60 S. Ct. 907, 84 L. Ed. 1263, 1273 (1940)), and "unfair methods of competition' (Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 311, 54 S. Ct. 423, 78 L. Ed. 814, 819 (1934)). See Davis, Administrative Law, p. 44 (1951).

Examination of the authorities indicates that the foregoing principles have been liberally used in zoning, which is simply another illustration of the exercise of the police power. Schmidt v. Board of Adjustment, 9 N.J. 405, 414 (1952). Thus in Gorieb v. Fox, 145 Va. 554, 134 S.E. 914 (Sup. Ct. App. 1926), affirmed 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228 (1927), the zoning ordinance permitted certain variances where the proposed structures would "subserve the general welfare of the neighborhood and city.' In Carson v. Board of Appeals of Lexington, 321 Mass. 649, 75 N.E. 2 d 116 (Sup. Ct. 1947), the zoning board was authorized to grant exception where "the public convenience and welfare will be substantially served, and where such exception will not tend to impair the status of the neighborhood.' See also McCord v. Ed Bond & Condon Company, 175 Ga. 667, 165 S.E. 590, 86 A.L.R. 703 (Sup. Ct. 1932). And in Olevson v. Zoning Board of Review, 71 R.I. 303, 44 A. 2 d 720 (Sup. Ct. 1945) the statute permitted the town council to make special exceptions to the zoning ordinance in appropriate cases in harmony with the general purpose and intent of the zoning ordinance "or where such exception is reasonably necessary for the convenience or welfare of the public.'

Applying the above to the terms of our Zoning Act, we find that the Legislature has not in any sense granted uncontrolled power to the administrative agency. It expressly set forth in R.S. 40:55-32 the proper zoning purposes to be achieved including the lessening of congestion, the securing of safety from fire, panic and other dangers, the providing of [11 NJ Page 126] adequate light and the prevention of overcrowding, the avoidance of undue concentration of population, and the promotion of health, morals or general welfare. It recognized that comprehensive restrictive regulations designed to carry out these goals, if rigidly and literally enforced without any opportunity whatever for relief in special situations, might result in serious injustice or impairment of the underlying public purposes; accordingly, it wisely adopted the policy expressed in R.S. 40:55-39 which enables individual variances consistent with the public interest and the purposes of the zone plan and zoning ordinance. With equal wisdom it provided specific safeguards to insure against unwarranted or arbitrary action and untrammeled administrative discretion. Thus, there must be a hearing upon adequate notice to interested parties. R.S. 40:55-44. If the ultimate relief is granted by the board of adjustment acting under subdivision (c), there must be a specific finding upon sufficient evidence of extraordinary condition of the property and undue hardship. If the board of adjustment is simply recommending relief under subdivision (d), there must be a specific finding of special reasons within the contemplation of the act, and the ultimate relief may not be granted without express approval of the municipal governing body. See Downey v. Grimshaw, 410 Ill. 21, 101 N.E. 2 d 275, 279 (Sup. Ct. 1951), where the court suggested that such approval represents a significantly lesser exercise than the governing body's acknowledged power to rezone. Above all, there is the fixed and far reaching protective restriction in the concluding provision of R.S. 40:55-39 against allowance of the variance unless it can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.' See Leimann v. Board of Adjustment, Cranford Tp., supra; Gerkin v. Village of Ridgewood, supra. Judicial review of the administrative action is afforded as of right (Const. 1947, Art. VI, Sec. V, par. 4; Rule 3:81-2), and our courts have not hesitated to set it aside where it

lacked reasonable basis. Leimann v. Board of Adjustment, Cranford Tp., supra; Gerkin v. Village of Ridgewood, supra.

In the light of all of the foregoing we fail to find any substantial basis for the thesis that the power delegated under subdivision (d) has not been "canalized within banks that keep it from overflowing.' Cardoza, J., in Schechter Corp. v. United States, 295 U.S. 495, 551, 55 S. Ct. 837, 79 L. Ed. 1570, 1591 (1935). See Cooper, Administrative Agencies and the Courts, pp. 41-45 (1951); Jaffe, An Essay on Delegation of Legislative Power, 47 Col. L. Rev. 359, 561 (1947). Nor do we see any real danger that unwarranted or arbitrary action will successfully survive the ample safeguards which are ever available. It is true that in lieu of the general standards set forth the Legislature might have sought to anticipate and enumerate with fixed details all of the individual special instances in which variance would be justified. However, experience has indicated the unwisdom of this course, and an acknowledged advantage of the administrative process has been its flexibility in enabling administrators to deal justly with unanticipated as well as anticipated situations in accordance with general legislative guides. See R.S. 33:1-74. Cf. Davis, Administrative Law, p. 13 (1951); Salmond, Jurisprudence (10 th ed. 1947), p. 52. It seems clear to us that sympathetic consideration of the applicable legal principles in the light of the problems confronting the Legislature in its endeavor to deal fairly and effectively with the entire zoning field dictates the conclusion that R.S. 40:55-39(d), as construed in the Monmouth Lumber case, embodies governing standards sufficient to withstand the constitutional attack advanced by the appellant. Cf. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 18 (1936):

"We need to be reminded, too, that in the construction of statutes establishing administrative agencies and defining their powers there is little scope for the ancient shibboleth that a statute in derogation of the common law must be strictly construed, or for placing an emphasis on their particulars which will defeat their ...

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