This consolidated action comes before the court on a motion by plaintiffs Kramer et al. for summary judgment in an action in lieu of prerogative writs challenging the validity of a variance recommended by defendant board of adjustment and granted by defendant Borough of Sea Girt. Plaintiffs Cross et al. did not formally join in this motion. Defendant Stockton Hotel, Inc. moves to consolidate two subsequent actions commenced by the same plaintiffs against the same defendants which challenge further actions taken by defendants board of adjustment and Borough of Sea Girt which occurred some two months after the filing of the original complaints.
The basic facts are not in dispute. On February 2, 1963 defendant Stockton appealed to the board of adjustment (hereinafter referred to as the board) pursuant to N.J.S.A. 40:55-39(d) from the refusal of the building inspector to grant a permit to erect a hotel on premises owned and occupied by Stockton as a nonconforming hotel use. The board conducted lengthy hearings on February 14, 1963 and on several dates thereafter. At the conclusion of the testimony on March 14, 1963 the board chairman announced:
"The meeting is then closed, and the hearing is over, the Board will deliberate and in the matter of a few days the decision will be announced publicly."
Thereafter, the board met three times in executive session. The first two meetings were deliberative sessions, but at the final executive session on March 26, 1963 the board voted to recommend that the variance be granted. On April 9, 1963 the mayor and council met at a regular public meeting and voted to adopt the board's recommendation. Thereafter, on May 22, 1963, plaintiffs commenced two separate actions (consolidated on June 17, 1963) challenging the validity of the actions of the board and the governing body on various procedural grounds and on the merits.
On June 25, 1963 Wolf v. Zoning Board of Adjustment , 79 N.J. Super. 546 (App. Div. 1963), was decided, and that decision apparently caused the board to be concerned over the legality of its vote taken in executive session, for thereafter, on July 18, 1963, it published the following notice in a newspaper of general circulation in the municipality announcing that on July 22, 1963:
"* * * further action will be taken in the matter of the application of Stockton Hotel, Inc., for a variance to erect a new hotel building in accordance with its petition and the exhibits and documents previously submitted."
At that meeting the chairman stated that the action was taken on the initiative of the board since "there may be some question as to the propriety of the vote taken at the meeting of the 26th of March, because that meeting was in effect an executive meeting and was not open to the public." Compare Tidewater Oil Co. v. Mayor and Council of Carteret , 80 N.J. Super. 283, 289 (Law Div. 1963). Counsel for plaintiffs Cross et al. objected to any further action by the board on the ground that the board lacked jurisdiction while the matter was before the Superior Court, and further, that notice of the meeting was neither timely nor proper. With counsel's objections being duly noted, the board resubmitted its resolution of March 26, 1963 and again voted to recommend that the variance be granted. At a regular public meeting on July 23, 1963 the governing body adopted the board's recommendation and granted the variance.
At the pretrial conference on August 7, 1963 defendants were permitted to amend their pleadings to recite the actions taken by the board and the governing body on July 22 and July 23 respectively. Thereafter, on August 29, 1963, plaintiffs filed complaints challenging the validity of the above mentioned actions.
The court will grant defendants' motion for consolidation since:
(1) The entire controversy deals with the validity of the action taken in recommending and granting the variance in question. Thus, the sole issue, stripped of all legal technicalities, is the same in both suits. Further, the parties are identical.
(2) The events occurring on July 22 and 23 are presently embodied in the pretrial order, albeit ...