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Izenberg v. Board of Adjustment

Decided: June 2, 1955.

DAVID W. IZENBERG, LEON LANSON, HARRY S. LA POFF, AND DAVID WAJDENGART, PLAINTIFFS-APPELLANTS,
v.
THE BOARD OF ADJUSTMENT OF THE CITY OF PATERSON, THE BOARD OF PUBLIC WORKS, AND MAYFAIR REALTY CO., INC., DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

[35 NJSuper Page 585] This is an appeal from a judgment in the Law Division in favor of defendants in an action in lieu of prerogative writ attacking the grant of a zoning variance by the Board of Works of the City of Paterson upon recommendation of the local board of adjustment. The locus in quo consists of a plot of vacant land approximating 20,000 square feet on the southeast corner of Broadway and East 33rd Street, Paterson, situated in an "A" residence zone. In addition to miscellaneous other types of use, the zoning

ordinance of the municipality, as revised to February 29, 1936, permits in an "A" residence zone a "dwelling or tenement house" to accommodate no more than nine families per acre of land, or in proportion thereto. The plot here involved could therefore be the site of dwelling accommodations for not more than four families, within the ordinance. The variance allowed by the local authorities was for an apartment house for 54 families, not to exceed six stories in height, with provision for a basement parking garage accommodating at least 35 cars. Access to the garage was to be via a 35-foot driveway across the rear of the lot on East 33rd Street immediately to the south of the subject property, on which there stands an apartment house in the same proprietorship, said driveway leading to Thirteenth Avenue, the thoroughfare which bounds the block here involved on the south. The existing apartment house and the subject lot occupy the entire frontage on the easterly side of East 33rd Street, from Broadway to Thirteenth Avenue. The easterly boundary of the block is Wall Avenue. The objectors to the variance, plaintiffs in the Law Division and appellants here, own recently constructed one-family homes of considerably more than average cost and attractiveness on the westerly side of Wall Avenue. These properties abut the existing and proposed new apartment house sites.

Broadway is a major traffic artery of the city, with a center island. East 33rd Street, for a number of blocks north and south of the Broadway intersection, is the fairly consistent boundary line between an "A" residence zone to the east and a "B" residence zone to the west. The "A" zone is described as the finest residential neighborhood in Paterson, with East Side Park, three blocks distant, as its core. The existing apartment house was erected in 1928 and is a prior non-conforming use. On the northeast corner of the intersection referred to stands Temple Emanuel, a house of religious worship, built in 1928, and a conforming use in the "A" residence zone. On the southwest corner of the intersection is a small No. 1 business zone occupying perhaps 20% of a block otherwise zoned "A" residence. There are three or four

stores in the business zone on each of the intersecting streets. A large residence contiguous to the stores on the East 33rd Street side has been converted to hotel uses and is referred to in the record as a "motel." Except for the non-residential uses mentioned and a church and parochial school on East 33rd Street south of Thirteenth Avenue, the general area in all directions from the intersection of Broadway and East 33rd Street appears to be predominantly residential in character.

The minutes of the board of adjustment, introduced by plaintiff without objection at the trial in the Law Division, show that at the meeting of January 14, 1954 the hearing on the application for the subject variance was adjourned, with the consent of objectors present, to January 28, 1954. On that day testimony on behalf of the applicant corporation was adduced by an officer of the corporation and by a real estate expert. Counsel was heard on behalf of objectors. The board reserved decision. On February 11, 1954 it adopted a resolution recommending the variance on the grounds that "from the application and inspection of the land, we feel that this is the most appropriate use of the land" and that, in effect, the grant would not impair the intent and spirit of the zoning ordinance and plan or interfere with public safety, health, morals and general welfare. On April 20, 1954 the board of public works, referring to approval thereof by the planning board (which occurred the same day), concurred in the recommendation, whereupon the present action was instituted.

In the Law Division plaintiffs raised questions concerning the jurisdiction of the board of adjustment grounded in alleged deficiencies in the content of the notice of the application and as to the service thereof on property owners. They also attacked the grant of variance on the merits and for the reason that the findings of the board of adjustment were not supported by the evidence taken at its hearing, as reflected by the minutes. After hearing, the trial court on December 2, 1954 remanded the proceedings to the board of adjustment "so that they may properly set forth the special reasons upon

which they based the grant of the variance." On December 9, 1954 the board of adjustment made seven findings "from the facts presented at the hearing" in support of its recommendation, and on December 21, 1954 the board of public works again resolved its concurrence in the action. Apparently without any further hearing, the trial court entered judgment in favor of the defendants December 27, 1954.

We have considered the points raised by plaintiffs relating to alleged insufficiency in the notice and in its service. We incline to the view that since the plaintiffs did appear or were represented before the board of adjustment, made no objection to service there, were apprised of all of the particulars of the application and had full opportunity to contest it on the merits, the defects complained of were waived. See Wilson v. Township Committee of Union Township , 123 N.J.L. 474, 476 (Sup. Ct. 1939). We need not decide this point, however, in view of our firm conclusion that the judgment under review must be reversed and the variance ordered set aside for the more fundamental reason that there were no findings, grounded in evidence received by the board of adjustment at the hearing, legally warranting its recommendation.

In any matter confided to its quasi-judicial discretion by N.J.S.A. 40:55-39 the local board of adjustment must make findings not only legally founded in the statutory criteria, Ward v. Scott , 11 N.J. 117 (1952), but also "substantially grounded in competent evidence." Dolan v. DeCapua , 16 N.J. 599, 612 (1954); Stolz v. Ellenstein , 7 N.J. 291, 295 (1951). Since it is the exercise of the presumably expert administrative judgment of the local boards which is tested on the judicial review, Beirn v. Morris , 14 N.J. 529, 537, 538 (1954), our examination must perforce be confined to the record made at the hearing before those agencies and the admeasurement of the legality of their action must be solely by what was there adduced, not by matters ...


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