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Donovan v. City of New Brunswick

Decided: April 28, 1958.

JOHN E. DONOVAN AND MARY DONOVAN, HIS WIFE, PLAINTIFFS,
v.
CITY OF NEW BRUNSWICK, N.J., ET AL., DEFENDANTS



Vogel, J.s.c.

Vogel

The issue in this case arises out of a complaint filed by two resident taxpayers of the City of New Brunswick, citing the local governing body, the planning board, the city clerk, building inspector, James McCourt, and Charles Ujvary.

A factual summary indicates that McCourt made application to the planning board for approval of a subdivision plat involving a plot of ground being designated in the first ward of the City of New Brunswick, at the corner of Cotter Drive and Clifton Avenue, delineated on the city tax map as Lot 5, block 725, class "A" residence district. A sketch accompanying the application prescribes that the area involved has a frontage of 116 feet on Cotter Drive, and a depth of 102 feet. It is proposed by this application to divide this property into two lots of approximately 58 by 102 feet each, and to construct two dwellings thereon, one approximately 37 feet across the front and the other approximately 38 feet across the front, both dwellings to front on Cotter Drive, which is a dead end street. The sketch also indicates that the location of the proposed dwelling on that portion of the lot nearest Clifton Avenue would have its building line within 14 feet of Clifton Avenue.

The minutes of the city planning board disclose that at a special meeting of the planning board held in the city hall of New Brunswick on April 5, 1957, an application by McCourt for a minor subdivision was approved. These plaintiffs became apprised of the action taken by the planning board on August 19, 1957, and in concert with other residents in the area appeared at a public meeting of the city commissioners on August 20, 1957, objecting to the approval heretofore taken by the planning board, at which time they were advised that the local governing body had no jurisdiction in the matter, and that the action of the planning board was dispositive, and that the only remedy available to these plaintiffs was resort to the courts.

The plaintiffs contend that the action taken by the planning board violates the zoning ordinance with respect to setback requirements; that the full membership of the subdivision

committee failed to approve the application at the public meeting; that no public notice was given, either as to the purpose of the meeting or the findings; that the action of the planning board in approving the subdivision under review would jeopardize property values in permitting the construction of two dwellings on one lot, thereby disturbing the neighborhood scheme; and further, that the action taken by the planning board was in contravention of the statute.

The defendants contend that the land subdivision ordinance of New Brunswick reflects a valid exercise of its powers; the action of the planning board in approving the application for a minor subdivision was a valid exercise of the powers granted to it by the subdivision ordinance. Further, that there is no application on file with the building inspector for a building permit; that the complaint was not filed within the time limits of R.R. 4:88-15; that the plaintiffs have failed to exhaust their administrative remedies prior to the filing of the complaint; estoppel on the basis of knowledge by the plaintiffs of action taken by the planning board.

The defendant McCourt filed a separate answer in which he seeks to have the complaint dismissed on reaffirmation of the defenses alleged in the answer by the local governing body; but asserts separate defenses alleging that the State of New Jersey, through the Attorney-General, should have been made a party; that he, McCourt, acquired a vested right by reason of the plat approval by the planning board, and further, that he has complied with the provisions of the rules and regulations of the municipality in connection with the application.

This matter is now before the court on cross-motions for summary judgments, and the immediate question for resolution is a determination as to whether the complaint was filed within the time limit prescribed by R.R. 4:88-15.

The factual situation, upon which there is no disagreement, indicates that the approval by the planning board occurred April 5, 1957, and that the complaint was filed August 20, 1957. The language of R.R. 4:88-15(b)(3)

provides that "No proceeding in lieu of prerogative writ shall be commenced * * * to review any determination of a planning board * * * after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality * * *." The documentary proof produced herein does not reveal any publication ...


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