Price, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.
[60 NJSuper Page 571] This appeal involves a zoning matter. Plaintiff Bank operates a branch office on the northeast corner of the Boulevard and Jefferson Avenue in the Borough of Hasbrouck Heights, Bergen County, New Jersey. In 1957 plaintiff determined to provide an off-street parking area for its customers. To that end it entered into a contract
to purchase four lots which are located to the rear of the bank building. One of the lots faces on Jefferson Avenue and has a dwelling house thereon. The other three are vacant inside lots. As assembled, they form an L shaped parcel, one end of which is contiguous to the bank property.
Most of the Borough is zoned for residential purposes. In this section however, each side of the Boulevard is zoned for business to a depth of 125 feet. Since almost the entire proposed parking area extends easterly beyond the business zone and into a residential zone, class "A," plaintiff filed an application for a variance with the local board of adjustment. The proposed use was opposed, and after lengthy hearings which were stenographically reported, the board denied the application by a formal resolution which made no findings of any kind and gave no reasons for the board's action.
Thereafter plaintiff filed the present action against the board of adjustment in the Law Division of the Superior Court seeking to have the resolution denying the application set aside on the ground that it was unreasonable, arbitrary and capricious. Defendant's answer denied that the resolution was unreasonable, arbitrary or capricious, and added the separate defense that plaintiff had failed to make parties defendant, those property owners within 200 feet of the premises in suit who had objected to the grant of the variance, it being defendant's contention that these persons were necessary parties. The trial court, in lieu of joining them as parties, directed that notice of hearing be given by mail to all property owners within 200 feet of the premises in question. At the conclusion of the trial, the judge decided that the refusal to grant the variance was arbitrary and capricious and entered judgment for plaintiff. His oral opinion is as follows:
"The Court: Well, I have read your briefs, and I have visited the property. It seems to me that the action of the Board of Adjustment in refusing to recommend this variance is arbitrary and
capricious. The property of the plaintiff is located in a business zone, and it is actually developed for business. It has all the appearance of being the main business center of Hasbrouck Heights -- that is, the Boulevard in that section. Immediately to the rear of the business area, there are one family homes. When I visited the property, on both sides of the street in the residential area, there were parked automobiles, one immediately behind the other.
There is undoubtedly a need for this parking area at this location, and a parking area of this nature, in my opinion, undoubtedly is a benefit to the entire community of Hasbrouck Heights, and I cannot conceive of any injury or inconvenience to the residential area.
There will be a judgment for the plaintiff."
The defendant's appeal makes these points. First, the action of the trial court in granting a variance after defendant board had refused to do so was contrary to law. Second, property owners who participated before the board of adjustment were necessary parties in interest in the Law Division. Third, the judgment of the court, as shown by its oral opinion, was based on matters outside the record and therefore is void.
Judicial review of the action of a board of adjustment is limited in its scope. The court has no right to consider the matter de novo and substitute its judgment for that of the board's. Tomko v. Vissers , 21 N.J. 226 (1956). In Schmidt v. Board of Adjustment of City of Newark , 9 N.J. 405, at page 423 (1952), the Supreme Court stated the rule to be applied as follows:
"The rationale of the statutory scheme is that the board of adjustment shall supply expert discretion to the matters coming within its cognizance, and judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of the delegated discretion. The reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency and merely substitute its ...