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Yahnel v. Board of Adjustment of Jamesburg

Decided: October 15, 1962.

ETHEL YAHNEL, JACK AND IRMA SAUERMAN AND RUDOLPH AND MARY ANN WOLFINGER, PLAINTIFFS,
v.
BOARD OF ADJUSTMENT OF JAMESBURG, N.J., MAYOR AND BOROUGH COUNCIL OF JAMESBURG, N.J., FRANK PERGOLA, BUILDING INSPECTOR OF JAMESBURG, NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION OF NEW JERSEY, AND MICHAEL AND ROSE SEMINARA, DEFENDANTS



Molineux, J.c.c.

Molineux

This is an action in lieu of prerogative writ to review the action of the Board of Adjustment of the Borough of Jamesburg in recommending, and the action of the Borough Council of said Borough in granting, a variance for the construction by the defendant New Jersey Bell Telephone Company of a wire center proposed to be built upon lands and premises located on the southerly side of Forsgate Drive. The lands and premises in question are owned by the defendants Michael and Rose Seminara, who have given to the telephone company an option to purchase. The building inspector of the Borough of Jamesburg is also made a party defendant herein.

An application for a permit to construct said building was made to the building inspector. Inasmuch as the property in question was located in a Residence "A" zone, the building inspector denied the granting of the permit. An appeal was taken to the Zoning Board of Adjustment. The application for a variance was made under subsection (d) of N.J.S.A. 40:55-39. This matter is therefore a "special reason" case.

The matter was heard by the Board of Adjustment on September 14, 1961, and was granted on September 28,

1961. The Borough Council approved the recommendation on November 8, 1961. Thereafter, on December 13, 1961, plaintiffs filed their complaint by way of action in lieu of prerogative writ. The matter came on for pretrial on February 2, 1962, at which time it appeared that the action of the Board of Adjustment contained no findings of fact, nor was there a stenographic record made of such proceedings. An order was then entered by this court on said date, remanding the matter to the Board of Adjustment with directions. Pursuant to said order a second hearing was held on March 29, 1962, of which a stenographic record was made. On May 24, 1962, the Board passed a resolution incorporating its findings of fact and its reasons for recommending a variance. Thereafter on June 12, 1962, the Borough Council approved the variance.

It is the second action of the Board of Adjustment and of the Borough Council which is presently before this court. Plaintiffs allege that the action of the Board of Adjustment and the Borough Council is arbitrary and capricious and not supported by the record below.

Initially, plaintiffs raise certain procedural issues which require consideration of the court.

(1) On the occasion of the action by the Board of Adjustment on May 24, 1962, the plaintiffs made application to the Board for an opportunity to submit further evidence. Such application was denied. It is said that this action constituted an abuse of discretion and that the matter should again be remanded with instructions to the Board to consider such evidence as the plaintiffs presently wish to submit.

At the termination of the hearing of the Board on March 29, 1962, the plaintiffs made no application for a continuance of the hearing, nor did they take any steps to apprise the Board of their request until May 24, 1962, at which time the Board was prepared to act. Presumably the postponement by the Board of any action from March 29, 1962, the date of the hearing, to May 24, 1962, was for the purpose of giving the members of the Board an opportunity to study the record.

No reason is given for plaintiffs' failure to make any application for a continuance until May 24, 1962. The need for speedy disposition of matters of this nature is obvious. We hold that the action of the Board in denying plaintiffs' application on May 24, 1962, was not, under the circumstances, an abuse of the discretion vested in the Board.

(2) Plaintiffs contend that the granting of the variance is illegal by reason of the fact that the Jamesburg Board of Adjustment failed to adopt, pursuant to the directions of N.J.S.A. 40:55-37 and in accordance with the directions of the Zoning Ordinance, Section XIV, par. 4, rules governing the conduct of its business. Both the statute and the ordinance use the word "shall." It has been held that whether or not such word constitutes a mandatory direction or establishes merely an authority depends upon the intent of the enacting body. ...


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