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Phillips v. Board of Adjustment of Town of Westfield

Decided: October 4, 1956.

CHARLES ALAN PHILLIPS AND ELEANOR C. PHILLIPS, HIS WIFE, PLAINTIFFS,
v.
BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD, A MUNICIPAL CORPORATION, AND HERBERT P. ECKERT, SR. AND MARGARET D. ECKERT, HIS WIFE, DEFENDANTS



Hughes, J.s.c.

Hughes

This is a proceeding in lieu of prerogative writ to challenge the validity of an exception granted by a municipal board of adjustment from one of the restrictive provisions of the Official Map and Building Permit Act of 1953. The plaintiffs (Mr. and Mrs. Charles Alan Phillips, referred to for brevity as Phillips) own and reside in the improved property at 862 Rahway Avenue, in Westfield, which is the southwest corner of Rahway Avenue and Maine Street. The latter street begins on Rahway Avenue and runs southwesterly about one-sixth of a mile to Seward Avenue, which runs parallel with Rahway Avenue. Maine Street is unimproved within the intendment of the statute referred to. The individual defendants (Mr. and Mrs. Herbert P. Eckert, referred to for brevity as Eckert) live at 850 Rahway Avenue. Having purchased two of the vacant lots on Maine Street to the rear and southwesterly of the Phillips property, known as 612 and 620 Maine Street, Eckert desired to build a one-family dwelling on the latter. By an interdiction applicable under the circumstances of this case, the statute forbids the issuance of a permit for such building on a lot which does not abut upon an improved street. The act, however, accommodates an exception under certain circumstances by the board of adjustment, which granted one here, and it is this exception which the plaintiffs seek to nullify in this action.

The matter came before the court on pretrial conference and was remanded to the board for two purposes: -- (1) for the taking and transcribing of evidence to implement the mere excerpt of the minutes of the board which had been made available, and (2) for the determination of jurisdictional facts. Cf. Protomastro v. Board of Adjustment of City of Hoboken , 1 N.J. Super. 102 (App. Div. 1948), 3 N.J. Super. 539 (Law Div. 1949), 3 N.J. 494 (1950); Ward v. Scott , 11 N.J. 117 (1952). This record having

been completed and pretrial conference having narrowed the issues to the single question of the substantive propriety of the board's decision, the court viewed the premises as stipulated by counsel. The case submitted on the above record impels the court to determine in fact and conclude in law as follows:

Rahway Avenue is a well-travelled street with a 20-foot width of pavement and is presently in the course of widening and other improvement. Maine Street, laid out about 20 years ago, is dedicated and accepted, and not only appears on the tax map, but also is shown on the master plan of Westfield. The view of the court disclosed that the Phillips house is substantial, attractively landscaped and wooded to the rear; that Maine Street gives the true appearance of a "paper" street, as indicated on photographs in evidence before the board and as characterized by Eckert's testimony to the effect that it was "just a dirt street, half wooded"; that aside from corner lots at Rahway Avenue, the lots thereon are unimproved by dwellings or other structures; that it is overgrown to a substantial extent and in any case is unimproved, as stated, within the meaning of the statute, supra.

The Municipal Planning Act, N.J.S.A. 40:55-1.1 et seq. , which became effective January 1, 1954, was designed to provide for the systematic planned development of a municipality, consonant with the promotion of its common interests, particularly in the field of its orderly growth in relationship to its future progress and needs. Planning thus has been viewed as a term of somewhat broader significance, in some respects, than zoning. Antonelli Construction, Inc. v. Milstead , 34 N.J. Super. 449 (Law Div. 1955). The Legislature also adopted, to be effective on the same date, the "Official Map and Building Permit Act of 1953," N.J.S.A. 40:55-1.29 et seq. These statutes are devoted to the same end, and their integration is so plain that both might well have been adopted (so far as their essential purposes are concerned, and apart from technical constitutional requirements) as parts of one statute. Both are designed to establish and secure a planned, as distinguished

from a haphazard, development of the community. In keeping with this concept of control of orderly future development, N.J.S.A. 40:55-1.39 provides that under circumstances as exist in this community and in this case, no building permit shall issue unless the lot abuts upon an improved street within the intendment of the act, which concededly was the situation facing Eckert here, and which led the building inspector to deny issuance of such permit. However, the act also provides:

"40:55-1.40 Appeal from decision as to issuance of permit

Where the enforcement of sections nine and ten of this act*fn1 would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the structure to be related to a street, the applicant for the permit may appeal from the decision of the administrative officer having charge of the issuance of permits to the board of adjustment in any municipality which has established such a board, or, in municipalities where there is no board of adjustment to the governing body, and the same provisions shall apply to such appeals and to such board or body as are provided in cases of appeals in respect to zoning regulations. The board may, in determining any such appeal, make reasonable exceptions and issue a permit subject to conditions that will assure adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the official map or on a master plan of streets duly adopted by a planning board. Where such master plan of streets exists, the board of adjustment or governing body, as the case may be, shall refer the application to the planning board for report and recommendation before taking action. L. 1953, c. 434, p. 2190, ยง 11.

It is noted that this power to grant exceptions is correlated procedurally to the statute authorizing the board to deal with "appeals in respect to zoning regulations" and this integration refers to the powers of the board delineated in N.J.S.A. 40:55-39. It is obvious that the same general jurisdictional containments which apply to the board in its function under the zoning statute, must be understood as charting as well ...


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