Clapp, Jayne and Francis.
The Building Inspector of the Borough of Metuchen refused to issue a certificate of occupancy to the plaintiffs in order to permit them to operate a school of music and dancing in an area designated R-3 residence district in the zoning ordinance. Property in this zone is permitted to be used for one and two-family houses, including row houses, and for apartment houses; also for boarding houses, a private school, convent or seminary, hospital or sanitarium, nursing home, a community center or club house, and a cemetery.
A board of adjustment was created by the ordinance and it was authorized to hear appeals from adverse decisions of the building inspector. In addition to hearing and deciding appeals, power was conferred on the board to interpret the ordinance "in its application to a specific instance where the regulations may be couched in general terms only."
No appeal was taken in this case to the board. Very shortly after the denial of the certificate of occupancy this action in lieu of prerogative writs was brought in the Law Division of this court for a judgment directing the building inspector to grant plaintiffs' request.
The trial court entered summary judgment in favor of the municipality and in his memorandum, 31 N.J. Super. 102 (Law Div. 1954), pointed out the failure to appeal, but did not base his decision on that ground. In passing we note that the answers of the defendants borough and building inspector both assert such failure as a separate defense to the suit.
Although the merits of the cause were argued before us and although we were assured by counsel for the borough, whose name is set out in the directory attached to the zoning ordinance as secretary of the board, that on appeal to the
board the building inspector's view would be adopted, we are constrained to dismiss the appeal because plaintiffs have not exhausted the administrative remedy. R.R. 4:88-14.
In doing so, we are motivated not only by the rule referred to but also by certain regulatory matters in the zoning ordinance which, so far as the record before us is concerned, do not appear to have been the subject of proof or consideration.
Specifically these matters are as follows: Section 8 of the ordinance requires that:
"The total combined building area for any private school shall not exceed fifteen (15) percent of the total area of the lot";
Section 10 provides that:
"No private school * * * shall be erected on a lot less than three (3) acres."
"For any school there shall be provided off-street parking space for at least one ...