Clapp, Hall and Schettino. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is from a prerogative writ judgment of the Superior Court, Law Division, Monmouth County, affirming the denial by defendant of an application made by plaintiffs for a permit to construct a dwelling house.
The basic issue requires an examination into certain sections of the zoning ordinance of the Borough of Deal in their application to two contiguous lots, separately numbered but title to both held at one and the same time by plaintiffs.
In 1944 the plaintiffs purchased Lot 11A with a one-family house and attached garage located at the northeast corner of Norwood and Parker Avenues in Deal. The house facing Parker Avenue was in violation of the zoning ordinance because the side and rear yards were insufficient.
We particularize the history of Lot 11B. In 1942 the municipality obtained title to it by virtue of a tax foreclosure decree. It is located on Norwood Avenue and immediately to the north of Lot 11A and is in the same zoning area and subject to the same zoning restrictions as Lot 11A. In 1945 this lot was put up for public sale by the borough, and was competitively bid for and sold to plaintiffs with no condition or restriction.
In 1947 plaintiffs converted the attached garage to a playroom. In 1948 plaintiffs obtained a building permit for and built a garage on Lot 11B for their use while living in the dwelling house located on Lot 11A. The garage was so located on Lot 11B that it could be used in the future as an accessory to a dwelling on Lot 11B, and admittedly it did and does not violate any requirement of the municipality as far as location with reference to lot boundary lines is concerned. In January 1955 plaintiffs contracted to sell their home on Lot 11A and to lease to the purchaser one-half of the garage on Lot 11B for a period of 99 years. Title was scheduled to close in early May 1955. In March 1955 plaintiffs applied to defendant for a building permit to erect a dwelling house on Lot 11B which they still owned, and the application was denied. Plaintiffs claim and the trial court found that it was then that they first knew of the violations existing on Lot 11A and that the Borough of Deal considered Lots 11A and 11B as one.
Plaintiffs did not appeal to the board of adjustment from the denial of the permit under N.J.S.A. 40:55-39(a) but instead applied to the board for a variance, apparently under N.J.S.A. 40:55-39(d), on the theory, which they must have then entertained, that they were not entitled to a permit as a matter of legal right and that a variance was required before it could issue. The board of adjustment recommended to the borough commissioners that a variance be granted, but on April 23, 1955 the commissioners disapproved on the grounds that plaintiffs' purchase of Lot 11B and subsequent construction of the garage thereon had cured the rear yard violation of Lot 11A; that plaintiffs' purchase of Lot 11B had caused a joinder of Lot 11A and Lot 11B; that plaintiffs could not thereafter treat Lot 11B as a separate lot, and that no dwelling house could therefore be built on Lot 11B.
On August 19, 1956 a second application for a building permit was made for a dwelling house different only in some minor particulars from the first. This application was also denied by defendant, and plaintiffs filed this action in lieu
of prerogative writ in the Superior Court without first seeking a variance.
We first take up defendant's argument that R.R. 4:88-15 bars the present action. The trial court agreed with this contention and we find such a holding to be erroneous.
The action of the board of commissioners which was not appealed from in 1955 was the denial of an application for a variance. However, the present action is not in lieu of certiorari to review the action of the board of adjustment and the board of commissioners in denying a variance. Rather, this action seeks relief in lieu of mandamus to compel as a matter of right the issuance of a building permit since such issuance is not committed to the discretion of the board of adjustment. In Yanuzzi v. Mayor and Council of Borough of Spring Lake , 22 N.J. 567, 570 (1956), the Supreme Court stated:
"Indeed, the judgment for defendants proceeds on the hypothesis that the pleaded right of action was lost by the operation of the limitation clause of R.R. 4:88-15(a).
But plaintiffs are seeking to enforce as landowners an asserted right to local services * * * a continuing right, if there be a right at all, enforceable by the constitutionally-secured proceeding in lieu of the prerogative writs; and the right is not lost by a failure of such judicial action within 30 days from the local authority's mere refusal to act. This is not a proceeding to 'review' formal action by the governing body, but rather for 'relief' by way of the prerogative writ in the nature of mandamus to command performance of what is deemed to be an enforceable governmental duty. It is not within either the letter or spirit of the cited rule. The subsequent specific enumerations of the rule itself resolve all doubt on this score."
The Yanuzzi opinion was relied upon by the Supreme Court in an opinion written by Mr. Justice Weintraub in Lettieri v. State Board of Medical Examiners , 24 N.J. 199, 205-6 (1957), in holding that the plaintiff sought enforcement of a right to a license and the 30-day limitation period provided in R.R. 4:88-15(a) was not applicable. Likewise, if the plaintiffs here ...