Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.
[59 NJSuper Page 157] Plaintiffs appeal from a judgment in the Superior Court, Law Division, dismissing on its merits their action in lieu of prerogative writs, brought to review the legal propriety of a resolution of the Board of Commissioners of Atlantic City approving a zoning variance recommended by the board of adjustment. The variance authorized defendant William O'Brien to construct an addition to his automobile service station in an area where such construction was normally prohibited by the local zoning ordinance. Appellants contend that the court erred in determining that the requirements of N.J.S.A. 40:55-39(d) were satisfied, and further erred in holding that despite the loss of the minutes of the meeting at which the O'Brien application was heard, and despite the loss of the transcript of the stenographic
record then taken, there were "sufficient facts available from the resolution, correspondence and exhibits" to justify the city's action.
Preliminarily it is important to note that a marked and unusual divergence exists in the respective contentions of the defendant board of adjustment and the defendant municipality on this appeal. Although uniting in their support of the aforesaid judgment, the attorney for the defendant board of adjustment and the attorney for the defendants City of Atlantic City and its superintendent of buildings urge diametrically opposing views as to the section of the Zoning Act under which the O'Brien application was made, prosecuted and granted, and by which they contend its granting can be deemed justified. The attorney for the board of adjustment contends that it acted under N.J.S.A. 40:55-39(b) and that its action was final and conclusive, while the attorney for the city and the superintendent of buildings rejects that concept and contends that the application was prosecuted under N.J.S.A. 40:55-39(d) and that the action taken by the board of adjustment and approved by the governing body was recommendatory only.
Defendants seek to sustain the aforesaid judgment in their favor not only on the basis on which the trial court rested its decision, but defendant board of adjustment specifically further contends that plaintiffs' action should have been dismissed as not brought within time under R.R. 4:88-15(b)(3), and the defendant City of Atlantic City claims that under R.R. 4:88-15(b)(4) plaintiffs' action should have been dismissed.
The record reveals the following factual situation.
Plaintiffs own a four-story apartment dwelling house located at 38 North Iowa Avenue in Atlantic City. They do not reside at that address. Defendant O'Brien owns the property at 40 North Iowa Avenue, contiguous to and northerly of plaintiffs' property. Prior to May 29, 1959 a four-story apartment dwelling house, similar to that of plaintiffs, was located at the latter address. Immediately adjacent
thereto, and northerly thereof, O'Brien owns and operates an automobile service station at 42 North Iowa Avenue (otherwise designated as 2800 Arctic Avenue), at the intersection of Arctic and Iowa Avenues. The property of plaintiffs at 38 North Iowa Avenue and the property of O'Brien located at 40 North Iowa Avenue are in an area designated in the Atlantic City zoning ordinance as Business Zone No. 2.
Desiring to increase the size of his service station by constructing an addition thereto in the area then occupied by the aforesaid building at 40 North Iowa Avenue, defendant O'Brien on April 23, 1958 filed an application for a zoning variance with the defendant board of adjustment. The hearing on the application was held April 30, 1958. Plaintiffs and several other owners of property within 200 feet of O'Brien's service station, who had been notified of the hearing pursuant to N.J.S.A. 40:55-44, were present and voiced their opposition to the proposed variance. Testimony was taken and a transcript of a stenographic record of the proceedings at the hearing was later filed in the office of the secretary of the board of adjustment.
Subsequently, the secretary of the board of adjustment sent a letter dated July 15, 1958 to plaintiffs' then attorney, which letter read as follows:
Atlantic City, New Jersey
At a recent meeting of the Zoning Board of Adjustment, the Board agreed to allow a variance to the above reference [sic] gas service station."
Following the receipt of this letter plaintiffs, on August 8, 1958, employed their present attorney to seek legal redress in the matter. On the basis of the action stated in the letter of July 15th to have been taken by the board of adjustment, plaintiffs' attorney immediately prepared a complaint in the Superior Court challenging that action and, on the morning
of Saturday, August 9, 1958, mailed it to the Clerk of the Superior Court. The attorney recalled the complaint on Monday, August 11, 1958, because, as he later stated in an affidavit submitted to the trial court, he "determined that further time was available" to him for "the taking of the appeal" and that he "also determined that changes should be made in the complaint" which he had sent to the court clerk. On Tuesday, August 12, 1958, he examined the file relating to the O'Brien application in the office of the secretary of the board of adjustment. At that time the file included the minutes of the aforesaid April 30, 1958 meeting as well as the aforesaid transcript of the hearing.
During his examination of the file plaintiffs' attorney discovered a copy of the following letter dated July 22, 1958 from the board of adjustment to the board of commissioners:
"Re: Application for service station
40 North Iowa Avenue -- 2800 Arctic
An application for a building permit for a one story cinder block and porcelain enamel service station building was refused by Louis F. Watson on February 19, 1958. An application was thereupon filed with the officer of the Board of Adjustment on April 30, 1958, and a hearing was held before Benjamin Seigel, acting Chairman, Mrs. Nadine Carpenter, and Harry Brown, members of the Board.
The applicant presented testimony setting forth reasons for the allowance of the variances and to permit an exception as requested. After considering all of the testimony the Board of Adjustment unanimously recommends to the governing body of the City of Atlantic City that a variance should be allowed to demolish the old and erect a new gas service station on the premises known as 40 North Iowa Avenue, Atlantic City, New Jersey, for the following reasons.
All repair, servicing, and washing will be done inside a modern bay -- presently some work is being done outside and if one car is getting gasoline the second car must wait partly on the sidewalk and partly in the street, blocking oncoming traffic. The erection of a modern service station will eliminate noise, present a generally cleaner area, as well as eliminate an unsafe traffic condition that now exists.
The board of adjustment finds that a modern gas station can be erected on the above mentioned premises ...