This is an action in lieu of prerogative writ wherein the plaintiffs seek to reverse the action of the Board of Adjustment of Cedar Grove whereby that body issued a certificate of occupancy to defendants Henry and Elizabeth Lowe, covering premises at No. 2 Robin Lane, Cedar Grove. By crossclaim, the defendant Township of Cedar Grove seeks the same relief.
The plaintiffs and the defendant Township of Cedar Grove now each move for summary judgment against the defendants Henry and Elizabeth Lowe and the Board of Adjustment of Cedar Grove; the plaintiffs moving on their complaint and the township on its crossclaim.
The crux of this dispute is whether or not the board of adjustment had jurisdiction to entertain an appeal by the Lowes from the refusal of the township building inspector to issue them a certificate of occupancy for the premises here involved. The board ruled that it had power of review in the matter and issued the certificate. By its answer in this action the board of adjustment contends, inter alia , that its power stems from N.J.S.A. 40:55-39. The pertinent part of this statute is as follows:
"The board of adjustment shall have the power to: a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning ordinance."
Additionally, the board urges that N.J.S.A. 40:55-1.39 and 1.40 empowered it to entertain the appeal here under review. In making this contention the board argues that although the certificate of occupancy is not specifically mentioned in these sections of the Official Map and Building Permit Act (1953) (L. 1953, c. 434, p. 2186, N.J.S.A. 40:55-1.30-1.42), a building permit and certificate of occupancy are so integrally related that the power of the board to hear appeals from denials of permits under N.J.S.A. 40:55-1.40 vests it with similar jurisdiction where certificates of occupancy are refused.
The Lowes agree essentially with the position of the board of adjustment in this regard; they, too, urge that the board had jurisdiction.
It is not difficult to perceive the interest of the plaintiffs and their motive underlying the complaint filed here. By virtue of a consent judgment in an earlier Chancery action, these plaintiffs were declared to be the owners of that tract of land known as Robin Lane -- a right-of-way 20-feet wide running from Pompton Avenue to the nearest point of property (Block 110, Lots 74-79) owned by Mr. and Mrs. Lowe, a total distance of some 578 feet. It certainly will be to the plaintiffs' advantage to have the right-of-way improved. This must be done if the various statutes applicable to subdivision and building permits are strictly followed. See N.J.S.A. 40:55-1.39, 40:55-1.21. If Mr. and Mrs. Lowe must bear the expense of these improvements, plaintiffs' property will increase in value without cost to them.
On February 14, 1955 Mr. Lowe applied to the Cedar Grove Planning Board for a subdivision of Block 110, Lots 74-79, part of which is the property here in controversy. This application was classified by the board as a "major subdivision." (See Article IV, Subdivision Ordinance of Cedar Grove.) It is to be noted, however, that the Lowes now claim that the classification of the proposed subdivision as "major" was in error.
On April 11, 1955 the planning board gave preliminary approval of the subdivision. This did not authorize Mr.
Lowe to build upon the property tentatively or preliminarily approved for subdivision. N.J.S.A. 40:55-1.18 (see affidavit of secretary of planning board annexed to motion of Township of Cedar Grove). Final approval of the plot was necessary before building would be authorized, and this would, of course, be subject to performance of the conditions of the subdivision. N.J.S.A. 40:55-1.21, 1.22.
Notwithstanding the failure of Mr. Lowe to obtain final approval of the subdivision, on July 2, 1955 he applied for and, inexplicably, obtained a building permit granting him the right to erect a $12,000, one and one-half story residential building at No. 2 Robin Lane. This permit was renewed on May 7, 1956. It was brought out at oral argument that he had obtained a building permit for another house, which was thereafter built and sold by him after he had gotten a certificate of occupancy for it. In October 1956 Mr. Lowe contracted to sell the house at ...