Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[45 NJSuper Page 384] This action was brought in the Superior Court, Chancery Division, by the Passaic Junior Chamber of Commerce, Inc. and Charles D. Binns, Warren Binns, Harold Binns and Russell Binns, partners, trading as Binns Passaic Iron and Brass Foundry. The defendants are the Housing Authority, the Board of Commissioners,
the Board of Adjustment and the Planning Board, all of the City of Passaic. On defendants' motion made before trial, Judge Grimshaw dismissed the action. Plaintiffs appeal.
By this action plaintiffs sought, among other things, to enjoin the housing authority and the board of commissioners from proceeding with a low income public housing project proposed to be erected on Chestnut Street, Passaic (where Binns' business is located) and to enjoin the board of commissioners, planning board and board of adjustment from "granting, approving or recommending any amendments or variances to the master plan, zoning ordinance or zoning map" to accommodate such a project on the Chestnut Street site. The zoning ordinance and master plan prohibit dwellings in the light industrial zone in which the site is located.
The motion was brought on before Judge Grimshaw upon affidavits submitted by plaintiffs and defendants, and it is therefore to be treated as a motion for summary judgment. R.R. 4:12-2. On such a motion the burden falls upon the moving party to show a clear absence of a genuine issue of fact. Monmouth Lumber Co. v. Indemnity Ins. Co. of North America , 21 N.J. 439, 448 (1956). Moreover, on such motions the courts will not undertake to evaluate the credibility of conflicting affidavits. We turn to the affidavits. A. Kaplen & Son v. Housing Authority of City of Passaic , 42 N.J. Super. 230, 235 (App. Div. 1956).
The parties agree that the action of the housing authority, approving the project and locating it on Chestnut Street, cannot be sustained if the authority was guilty of a palpable abuse of discretion. City of Newark v. New Jersey Turnpike Authority , 7 N.J. 377, 381 (1951). That presents the first question. Can it be said that the affidavits show clearly that there was no palpable abuse of discretion on the part of the authority?
In the affidavits submitted on plaintiffs' behalf, it is declared that the authority's determination to undertake this project and locate it at the Chestnut Street site was made "precipitately" and "secretly." The point is without merit.
It is definitely refuted by affidavits submitted on defendants' behalf specifying the action taken by the housing authority between February 16 and November 8, 1956, and setting out 27 items which appeared in the local press between February 17 and November 9, 1956.
Furthermore, in the affidavits submitted on plaintiffs' behalf, figures and facts are set out in an endeavor apparently to establish that it would be unwise for Passaic to undertake the project. But this does not establish a palpable abuse of discretion. Judge Grimshaw properly entered a summary judgment on the matter of abuse of discretion.
Next, some point is made by plaintiffs that, as stated in the affidavits mentioned, the Chestnut Street site is not one of the several slum areas in Passaic. No authority is cited on the subject, and (as plaintiffs seemed to concede in dealing with the constitutionality of certain aspects of this legislation) there is no provision in the act requiring housing projects to be located in a slum area. This is pointedly brought out in N.J.S.A. 55:14 A -3(i), read with 55:14 A -7(b). Under these statutes, the housing authority has power to (1) demolish or remove buildings from a "slum area," or (2) provide decent, safe and sanitary dwelling accommodations, or (3) accomplish a combination of the foregoing; but there is nothing to indicate that the new accommodations are to be erected in the slum area. Very similar statutes have been construed as not imposing upon the authority any requirement that the project be placed in a slum area. Hogue v. Housing Authority of North Little Rock , 201 Ark. 263, 144 S.W. 2 d 49, 55 (Sup. Ct. 1940); Riggin v. Dockweiler , 15 Cal. 2 d 651, 104 P. 2 d 367 (Sup. Ct. 1940); Stockus v. Boston Housing Authority , 304 Mass. 507, 24 N.E. 2 d 333, 338 (Sup. Jud. Ct. 1939); In re Housing Authority of City of Charlotte , 233 N.C. 649, 65 S.E. 2 d 761, 769 (Sup. Ct. 1951); Ferch v. Housing Authority of Cass County , 79 N.D. 764, 59 N.W. 2 d 849, 860, 861 (Sup. Ct. 1953); St. Stephen's Club v. Youngstown Metropolitan H.A. , 160 Ohio St. 194, 115 N.E. 2 d 385, 389 (Sup. Ct. 1953); Blumenschein v.
Housing Authority of Pittsburgh , 379 Pa. 566, 109 A. 2 d 331, 336 (Sup. Ct. 1954), appeal dismissed 350 U.S. 806, 76 S. Ct. 68, 100 L. Ed. 724 (1955); Housing Authority of City of Dallas v. Higginbotham , 135 Tex. 158, 143 S.W. 2 d 79, 89, 130 A.L.R. 1053 (Sup. Ct. 1940); Chapman v. Huntington, West Virginia, Housing Authority , 121 W. Va. 319, 3 S.E. 2 d 502, 509 (Sup. Ct. App. 1939); cf. Ryan v. Housing Authority of City of Newark , 125 N.J.L. 336, 343 (Sup. Ct. 1940); but cf. Romano v. Housing Authority of City of Newark , 123 N.J.L. 428, 434 (Sup. Ct. 1939), affirmed 124 N.J.L. 452 (E. & A. 1940). The authority is given a discretion in the matter; slums at times exist in areas where it would be undesirable to erect new projects.
We come next to the questions raised with respect to the zoning ordinance. By motion made in this court some weeks before final argument, defendants, invoking our original jurisdiction, R.R. 1:5-4(a), asked us to determine whether the housing authority has to apply for a variance or an amendment of the zoning ordinance and master plan.
In that connection defendants rely on the resolution of the planning board adopted on May 16, 1956 and that of the board of commissioners adopted after a public hearing on October 2, 1956, both approving the project and the Chestnut Street site; and they claim that this action, taken with the Cooperation Agreement (herein mentioned), renders any such variance or amendment unnecessary. The point was raised in the Chancery Division by way of defense to the plaintiffs' demand for an injunction prohibiting such a variance or amendment. Though it was unnecessary for Judge Grimshaw to decide the point, defendants claim it presents a question which should now be resolved since the Federal Public Housing Administration will not advance further funds for the project unless a variance ...