On appeal from the Superior Court, Law Division, Passaic County.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
[14 NJ Page 602] In an effort to provide additional space to accommodate guests of his hotel situated on East 33rd Street, Paterson, the plaintiff made certain improvements in a small, one-story building on the rear portion of the same plot as the main hotel building. When the building inspector, one of the parties defendant, denied the application for a certificate of occupancy "to occupy and use the accessory building in the rear of premises * * * for a hotel use and incidental to the hotel use of the main premises thereon," the plaintiff filed a complaint in lieu of prerogative writ.
The Board of Adjustment, the Board of Fire and Police Commissioners, and the Board of Public Works of the City of Paterson were all denominated defendants, inasmuch as the validity of certain ordinances and regulations of these municipal boards was challenged.
The relief sought was the setting aside of the building inspector's action because it was arbitrary, capricious and unreasonable; a restraint against the defendants interfering with the use of the premises as requested by the plaintiff in his application; the issuance to the plaintiff of the requested certificate of occupancy; and a declaration that section X, paragraph c of the Zoning Ordinance of the City of Paterson, on the basis of which the plaintiff's application was denied, was invalid or, as applied to the subject premises, unreasonable and void.
After hearing oral argument on cross motions for summary judgment, the court below entered judgment in favor of the defendants. The appeal, taken to the Appellate Division, was certified here on the court's own motion. R.R. 1:10-1.
Initially, a procedural question is presented, namely, whether or not the plaintiff was required to appeal to the board of adjustment before instituting the present suit.
The case projects purely legal questions, and the assertion is made that little would be accomplished by submitting the controversy to an administrative tribunal, whose function is not to construe statutes or ordinances or resolve constitutional issues.
Among other substantive points advanced is the contention that a certain portion of the building code is invalid as having been enacted without legislative authority, and also that the proposed use of the rear building constitutes an "accessory use" within the meaning of the zoning ordinance.
The decision thus turns upon questions peculiarly suited to judicial treatment rather than disposition by an administrative board engaged in a quasi-judicial function. In these circumstances the prerogative proceeding is wholly proper, Tzeses v. Barbahenn, 125 N.J.L. 643 (E. & A. 1940); Lane v. Bigelow, 135 N.J.L. 195 (E. & A. 1946);
Carroll v. Board of Adjustment of Jersey City, 15 N.J. Super. 363 (App. Div. 1951), and it was not necessary for the plaintiff to exhaust his remedy of administrative review.
Nor does R.R. 4:88-14 impose the necessity of an appeal to the board of adjustment before the present proceeding, for its requirement of exhaustion of remedies is prefixed with the clause "except where it is manifest that the interests of justice require otherwise." We think the ends of justice are best served in the present case by a judicial determination through a proceeding in lieu of prerogative writ; the procedure seems tailored to fit the situation at hand.
The primary consideration is whether the appeal to the intermediate body would be a futile gesture; if so, it is not required, for reasonable speed is still an essential part of substantial justice. We have heretofore permitted parties to bypass the administrative agencies ...