On appeal from Superior Court, Appellate Division, whose opinion is reported in 48 N.J. Super. 45.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs and Francis. For reversal -- Justices Heher and Proctor. The opinion of the court was delivered by Burling, J. Proctor, J. (dissenting in part). Mr. Justice Heher joins in this dissent.
Defendant, building inspector of the Borough of Deal, Monmouth County, New Jersey, denied plaintiffs' application for a building permit to construct a one-family residence. Plaintiffs instituted a proceeding in lieu of prerogative writ in the Superior Court, Law Division, praying that the defendant be required to issue the desired permit. That court, after a hearing, dismissed the plaintiffs' action. On appeal, the Appellate Division reversed, 48 N.J. Super. 45 (1958), and we granted the defendant's petition for certification. 26 N.J. 302 (1958).
In 1944 plaintiffs, husband and wife, purchased a lot and one-family residence and attached garage located on the northeast corner of Parker and Norwood Avenues in the Borough of Deal. The lot is designated on the borough's tax map as lot 11A. Although unknown to plaintiffs at the time of purchase, the dwelling house was so located on the lot as to result in a violation of the applicable rear- and side-yard area requirements of the Deal zoning ordinance. The house fronts on Parker Avenue to the south and, apparently, in order to have complied with the zoning ordinance it should have been built facing Norwood Avenue to the west. The municipality had acquired title to lot 11B immediately adjacent to lot 11A on the north, by tax foreclosure in 1942. In 1945 the plaintiffs, by deed without restriction, purchased lot 11B from the municipality at a public auction sale. Thereafter, in 1947 the plaintiffs, without obtaining a building permit, converted the attached garage on 11A into a recreation room.
The following year plaintiffs obtained a building permit for and constructed a two-car garage, located on lot 11B. The garage was purposively located in such a manner as to be accessible from either the house on 11A or any house
which might in the future be constructed on 11B (fronting on Norwood Avenue). The application specified that the address location for the garage was Parker Avenue, but the application was filed by the builder and he testified that he placed the Parker Avenue address on the permit solely because that was where plaintiffs resided.
In January of 1955 the plaintiffs contracted to sell lot 11A to a third person. In order to effectuate the purchase the plaintiffs were required by the purchaser to lease one-half of the garage located on 11B together with a right of way for a period of 99 years. Title passed in May of 1955.
In March of 1955 the plaintiffs made application for a building permit to construct a residence on 11B for their own use. This permit was denied by the building inspector. Instead of appealing from the denial of the permit to the board of adjustment, N.J.S.A. 40:55-39(a), or to the Superior Court, on the theory that the zoning ordinance was not violated, the plaintiffs made application to the board of adjustment for a variance, N.J.S.A. 40:55-39(d).
The board recommended a variance, but the board of borough commissioners disapproved the request. No further action was taken. Plaintiffs, having sold their home on 11A, acquired other quarters.
Some time later the plaintiffs succeeded in finding a prospective purchaser for 11B, but the prospective purchaser sought assurances that he would be able to build on the lot. Accordingly, on August 19, 1956 the plaintiffs again made application for a building permit, this time submitting the plans of the proposed purchaser. The application was denied and plaintiffs' sale failed of consummation. The instant in lieu proceeding ensued.
The municipality's theory in denying the permit was that plaintiffs' initial purchase of lot 11B, or the subsequent construction of the garage thereon, caused the lots to be joined. The municipality asserts that this joinder cured the rear-yard violation of lot 11A and that the lots cannot now be severed and treated as independent parcels of realty.
Initially the defendant asserts that R.R. 4:88-15(b)(3) and the case of Home Builders Ass'n of Northern N.J. v. Paramus Boro., 7 N.J. 335 (1951), operate to bar the instant in lieu proceeding. The argument is that since plaintiffs failed to appeal from the resolution of the governing body of 1955 rejecting plaintiffs' request for a variance within 30 days, as required by the former version of R.R. 4:88-15(b)(3) applicable to those proceedings, they may not revive the lost right by their present course of action.
In the Home Builders case, supra, the plaintiff had initially sought a variance which was refused by the board of adjustment. It then applied for a variance, based upon submitted plans which were substantially similar to those initially rejected by the municipality. We held:
"The defendants further argue that the plaintiff, having failed for more than 14 months to appeal the earlier decision of the Board of Adjustment wherein the Board denied the variance sought but granted a lesser variance, may not now be permitted by indirection to review that action merely by the filing of an application for identical relief and the suffering of a denial thereof. There appears in the record before us no semblance of reason for the plaintiff's delay of a year in questioning the Board's earlier action. It appears that the grant of the 25-foot variance made by the Board in 1949 remains unrevoked, and that the Board's action in regard thereto was not appealed. There is no attempt on the part of the plaintiff to show any change in its status nor in the situation or condition of the premises in question, indicative of hardship in the strict application of the terms of the zoning ordinance to an extent not existing at the time of the earlier application in 1949. The plaintiff should not be permitted by indirection to review so much of the decision of the Board of Adjustment of March 8, 1949, as was not acceptable to it. Compare Sitgreaves v. Board of Adjustment of Town of Nutley, 136 N.J.L. 21 (Sup. Ct. 1947), and Crescent Hill, Inc. v. Board of Allendale, 118 N.J.L. 302 (Sup. Ct. 1937). In passing we note our recent rule on this subject, Rule 3:81-15 [now R.R. 4:88-15(b) (3)]." 7 N.J., at page 342.
The course pursued by plaintiffs herein was essentially different. Upon refusal of the first request for a building
permit, they sought a variance under N.J.S.A. 40:55-39(d), a matter within the sound administrative discretion of the board of adjustment and board of borough commissioners. See Zahodiakin Engineering Corp. v. Zoning Bd. of Adjustment, 8 N.J. 386, 394 (1952). When that attempt failed, they thereafter sought to raise in the instant proceedings the purely legal question of whether, under the terms of the zoning ordinance, they are entitled to the permit as a matter of right. Plaintiffs are not seeking to raise indirectly in this proceeding (as was done in Home Builders) the question of whether the variance should have been granted. Therefore, the rationale of the Home Builders case would not bar the instant action unless (as will be hereinafter discussed) the plaintiffs should have sought to raise the legal question involved by in lieu proceedings within the time limits prescribed by R.R. 4:88-15, either upon the initial denial by the building inspector or after the decision of the governing body of the municipality denying the variance.
Reliance is also stressed on the case of Sitgreaves v. Board of Adjustment of Nutley, 136 N.J.L. 21 (Sup. Ct. 1947), which does support somewhat the defendant's position here. That case involved an attempt to seek judicial review of a second denial of a variance. The Supreme Court concluded that the plaintiff's failure to seek judicial review of the initial variance request precluded review of the second determination ...