For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Plaintiffs instituted an action in lieu of prerogative writ to review the determination of the Town Council of Bloomfield in refusing to concur in the recommendation of the board of adjustment to grant a variance to plaintiffs. N.J.S.A. 40:55-39(d). The Law Division allowed owners of properties within 200 feet of plaintiffs' property to intervene as defendants. The Law Division dismissed the complaint. Plaintiffs appealed to the Appellate Division and, while the appeal was pending, we certified it on our own motion.
In 1944 plaintiffs applied for a variance covering a portion of the premises presently in question. The application was denied and the denial was affirmed. Pieretti v. Johnson, 132 N.J.L. 576 (Sup. Ct. 1945). The question whether this denial acted as a bar to a hearing on the merits in the present matter was raised and fully argued before the board of adjustment. The board held, by a 5 to 0 vote, that the doctrine of res adjudicata was not applicable.
The Town Council, however, did apply the doctrine and plaintiffs question the propriety of that application. They contend that the Council failed to ascertain whether there was factual support for the board's decision to refuse to apply the doctrine. They claim that, instead, the governing body summarily decided that res adjudicata should be applied upon the basis of a then recent Appellate Division decision, Russell v. Tenafly Bd. of Adjustment, 53 N.J. Super. 539 (App. Div. 1959), which was reversed subsequent to the Town Council's action, 31 N.J. 58 (1959). They also contend that the Council failed to consider the recommendations of the board of adjustment on their merits.
At oral argument some confusion existed as to just what the Town Council had done and how it had acted. Reference was there made to a letter opinion of the Town Attorney to the Town Council concerning plaintiffs' matter. At our request copies were sent to us. The Attorney clearly advised the Town Council that it could do nothing but deny the
present application upon the basis of res adjudicata. As we read the record, no attempt was made by the Town Council to evaluate the application, the facts adduced by plaintiffs and the objectors, and the findings and conclusions of the board of adjustment.
We stated in Russell, at p. 65, that res adjudicata is applicable on a second application, but the fact "That the same owner and same property are involved in the second application for a variance is not alone sufficient to act as a bar; the objector must also show that the second application is substantially similar to the first, both as to the application itself and the circumstances of the property involved." Thus, the Town Council should have considered plaintiffs' application on the entire record and should have considered the findings and conclusions of the board of adjustment. Recently, we pointed out that "the governing body may draw its own ultimate conclusions from the facts adduced before the board." Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961). However, in fairness to the Town Council, plaintiffs did not submit a copy of the stenographic testimony even though the Town Clerk had requested plaintiffs and the objectors to submit "such material as they might wish." Absent the stenographic record, the Town Council could not have so acted.
Ordinarily, we would remand. In view of the fact that the record was presented to us, we have decided to bring a finality to these proceedings. Lowenstein v. Newark Board of Education, 35 N.J. 94, decided May 22, 1961. Moreover, even if the Town Council had adopted the board of adjustment's recommendations, we would have to reverse on the grounds that such action was arbitrary, capricious and a manifest abuse of its discretionary authority. Andrews v. Ocean Twp. Bd. of Adjustment, 30 N.J. 245, 251 (1959).
Plaintiffs, trading as Brookdale Beverage Co., are the owners of property known as 218-228 Sylvan Road, Bloomfield. The property has a total frontage of 145' on Sylvan Road and a depth of approximately 780'. The property,
situated in "Small Volume Residential Zone A," has a combination residential and industrial use. Plaintiffs reside in the front and conduct their business in the rear. Plaintiffs have been living on the property since 1926 but took title to part of the premises known as the Herbstreith tract on October 30, 1935, and to the Ochsner tract on October 15, 1943, after the adoption by the Town of Bloomfield of its Zoning Ordinance on December 15, 1930.
The Herbstreith tract was approximately 70' x 780' and makes up the westerly portion of plaintiffs' property. The Ochsner tract which makes up the rest was heavily wooded. The property to the west, owned by people named Patterson, has been used as an express business since the 1920s. The properties to the east are residential. Less ...