Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[39 NJSuper Page 454] This appeal presents a further development of plaintiffs' attempt to obtain permission to use their vacant lot on the south side of Hillside Avenue, Leonia, located in a one-family residence zone, as a driveway and parking lot for business purposes. The zoning officer initially refused such permission; there was an appeal to the local zoning board for a variance under N.J.S.A. 40:55-39(c) (undue hardship), or for a recommendation of a variance to the governing body under N.J.S.A. 40:55-39(d) (particular cases and special reasons); and the board, after a full hearing, by formal resolution denied the application. Plaintiffs then sought review in the Law Division where Judge Leyden found the zoning ordinance reasonable and accordingly constitutional, and held the zoning board's refusal of a variance proper because plaintiffs had failed to establish undue hardship under N.J.S.A. 40:55-39(c). However, he found
the board's refusal to recommend a variance to the governing body was arbitrary, capricious and unreasonable, and ordered it to reconsider and decide the matter on the merits, in accordance with law.
On June 22, 1955 plaintiffs appealed from that portion of the Law Division judgment which declared the ordinance valid. We decided the appeal November 30, 1955, affirming the judgment below in this respect. However, plaintiffs did not await the outcome of that appeal; they promptly went back to the local zoning board for a rehearing pursuant to the direction in the judgment entered by Judge Leyden. The board conducted a hearing on June 7, 1955 and on June 29 reaffirmed its previous denial of a recommendation of a variance, setting forth its reasons in a comprehensive resolution. Plaintiffs then filed a new complaint in lieu of prerogative writ in the Law Division questioning the last action by the board. After defendants had answered, plaintiffs moved for summary judgment, relying upon the pleadings and the stenographic transcripts of both hearings before the zoning board, as well as the transcript of the original appeal to this court. They alleged that at the second board hearing there had been no new matter introduced substantially altering the factual situation, and therefore the board's action amounted to an abuse of power and was an arbitrary, capricious and unreasonable act. Judge Waesche, sitting in the Law Division, granted the motion without opinion and without findings, on November 9, 1955, before we decided the former appeal. This appeal ensued.
There is no need to repeat here the facts set out in our former opinion describing the area in question, the residential character of Hillside Avenue west of the 150-foot strip on Broad Avenue zoned for business and apartments, and the predominantly residential character of Leonia. In affirming the conclusion reached by the Law Division in its prior judgment that the zoning ordinance as applied to the premises in question was valid, we held that the ordinance was reasonably designed to further the advancement of the community as a social, economic and political entity, and was in the general
welfare; and that the ordinance was passed in accordance with a comprehensive plan, justifying the borough's desire to increase and enhance its one-family residence zone in the interest of the community welfare and within the requirements of the statute, R.S. 40:55-32.
A number of collateral questions have been raised on this appeal, but our main concern will be with the merits, namely, whether or not the zoning board's refusal to recommend a variance was so completely devoid of justification as to warrant its reversal by the Law Division. Both parties stated at the oral argument that they preferred to have the matter so decided. However, we cannot forego comment on at least three of the subsidiary issues raised.
Defendants claim that it was error for Judge Waesche to grant a summary judgment. We do not have his reasons for doing so; it would appear that he acted upon what Judge Leyden had said in the previous proceedings in lieu of prerogative writs. Defendants' argument is that a summary judgment is improper in a proceeding in lieu of prerogative writ; it falls within neither the letter nor the spirit of our rules. The attempt here is to raise a distinction based on form rather than substance. The rules do not exclude summary judgment in this kind of action; R.R. 4:58-3 authorizes summary judgment where the pleadings, depositions and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law. Cf. R.R. 4:88-4 dealing with summary judgments where the complaint demands performance of a ministerial act or duty.
Plaintiffs claim that defendants failed to comply with the provisions of R.R. 1:2-8(a) in that a copy of the notice of appeal was not served upon the trial judge. The purpose served by this requirement seems clear enough; the trial judge is thus notified that his determination is under appeal and he is given an opportunity to set out at length the reasons which led him to his conclusion. However, the failure to serve a copy of the notice of appeal upon Judge Waesche is
not jurisdictional, i.e. , vital to the life of the appeal. The requirement that the trial judge be served with a copy of the notice of appeal is relatively new; it became part of R.R. 1:2-8(a) on September 7, 1955. We overlook the omission in this case, R.R. 1:27 A.
Although not stressing defendants' failure to comply with R.R. 1:2-8(a), plaintiffs, however, place great emphasis upon the binding effect of Judge Leyden's judgment upon Judge Waesche in the second action in lieu of prerogative writs. The claim here is that defendants did not appeal from Judge Leyden's judgment, nothing factually new was adduced at the second zoning board hearing, and accordingly, there was nothing left for Judge Waesche to do but enter the summary judgment which he did, setting aside the action of the zoning board in refusing to recommend a variance, and directing it forthwith to recommend in writing to the governing body that plaintiffs' request for a variance should ...