For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The members of the Maplewood Club, a private recreation club in the Township of Maplewood, decided in May 1961 to construct an outdoor swimming pool on the Club property. The preliminary plot plans were rejected by the Township engineer because they did not conform to the zoning ordinance. Mr. Lebovitz, a neighboring property owner, and one of the plaintiffs, who had expressed some concern about the proposed pool construction, was informed to that effect by the Township Clerk. The Clerk promised to notify him of any future developments.
On April 6, 1962 the Club applied to the Township building inspector for a permit to erect a bathhouse and swimming pool on its property, which he granted the same day. On April 19, 1962 an item appeared in the Maplewood News Record saying that the Club had been granted a permit to construct the pool. On April 20 the Township Clerk telephoned the Lebovitzes that a permit had been granted. Shortly thereafter Mr. Lebovitz informed several of his neighbors. On May 1, 1962 a number of property owners in the neighborhood of the Club appeared before the Township Committee to protest the issuance of the permit. The Township Committee told them the permit had been issued and the Committee could do nothing. On the following day, May 2, 1962, excavation was begun. Until this excavation work several other neighboring property owners, also plaintiffs, were not aware of the proposed construction. On May 4 a number of property owners commenced a suit in the Superior Court, Law Division, alleging that the issuance of the permit violated the Township ordinances and demanded that the Club be enjoined from constructing the pool. An interim restraint was immediately entered and construction was discontinued. On May 11 the trial court continued the restraint during the pendency of the action and ordered that the plaintiffs be given leave to apply to the Board of Adjustment for a review of the propriety of the building inspector's issuance of the permit. In the opinion of the trial court the Township's ordinances did not forbid [43 NJ Page 498] the construction of the swimming pool so long as the pool would not be injurious to any district as a place of residence.*fn1 All parties agreed that the determination of injuriousness was a factual one for the Board of Adjustment. Plaintiffs
promptly filed an appeal under N.J.S.A. 40:55-39(a)*fn2 with the Board of Adjustment, which was heard by that body on May 21 and 22. The Board had a rule which required that an appeal from an action of the building inspector be taken within 30 days. Although plaintiffs' appeal was taken more than 30 days from the issuance of the permit, the Board relaxed its rule, over the Club's objection, to hear the matter on its merits. On July 31, 1962 the Board by a vote of 3-1 (one member disqualified himself) upheld the action of the building inspector. On September 11, 1962 some of the plaintiffs instituted a second action which included a charge that the decision of the Board was arbitrary, capricious and unreasonable. The two complaints were then consolidated and heard in the Law Division by Judge Crane, who ruled that the issuance of the permit be set aside because the finding of the Board that the proposed use would not be injurious to the district as a place of residence was arbitrary, capricious and unreasonable. The defendant Club appealed to the Appellate Division, which reversed the trial court, and affirmed the decision of the Board of Adjustment, holding that there was substantial evidence before the Board from which it could reasonably determine that the proposed use would not be injurious to any district as a place of residence. We granted the plaintiffs' petition for certification. 42 N.J. 290 (1964).
The following evidence was presented at the hearings before the Board of Adjustment:
The Maplewood Club, a nonprofit organization, was organized in 1916. For a number of years it owned a large tract of property fronting on Ridgewood Road, Collinwood Road and Claremont Avenue, in the Township of Maplewood. The Club has sold off the land fronting on these streets, with the exception of a narrow driveway, so that it now owns a virtually
landlocked tract of 2.1 acres. This tract is now surrounded by homes which were described by the defendants' real estate expert as "fine upper middle class residences." The topography of the land slants downward from west to east. Therefore, the homes located west of the Club property are higher, while the properties to the east are on a lower level. Both the Club and the surrounding properties are located in the two highest residential zones of the Township.
On the tract the Club has the following: four tennis courts, a clubhouse with facilities for bowling, dancing, banquets, and other social and civic functions, and a parking lot. The parking lot can accommodate approximately 50 automobiles. Other than the tennis courts there are no facilities for outdoor recreational activities.
The parking lot is located in the northwest corner of the Club property. To the south of the parking lot is the clubhouse. The tennis courts occupy the southeast corner of the premises. The Club's plans call for an outdoor swimming pool, and a separate. wading pool for children, to be constructed in the southwest corner of the premises. The pool itself is to be approximately 78 feet long and 43 feet wide. It is to be surrounded by a terrace. The over-all dimensions of the pool and terrace area will be about 135 feet from north to south, by 78 feet from east to west. Adjacent to the west side of the terrace will be constructed a bathhouse 88 feet long by 16 feet wide and approximately 9 feet in height. The rear of the bathhouse will be 12 feet from the Club's western property line and 16 feet from the southern property line. The terrace surrounding the pool will be 29 feet from the Club's western line, and 6 1/2 to 10 feet from the southern property line. Proceeding counterclockwise from the northwest corner, the properties of Goldman, Widger, Yeskel, Millman, Dorfman, and Sklar abut the Club on the west side. Most of these properties are 70 feet in width and 147 feet in depth. The Lebovitz property is separated from the Club by the 70-foot width of the Sklar property which is to its east. The properties of William Black, Haggerty, Sparks, Maetzel,
and Smith abut the Club's property to the south. Most of these are approximately 50 feet in width and 100 feet in depth. The properties of Heinle, Bates, George Black, Mueller, and Gruen abut the Club property on the east. These properties vary in width from 58 feet to 123 feet and in depth from 113 feet to 188 feet. The Cooper property is separated from the Club by the 58-foot width of the Gruen property to its south. On the north side are the properties of Blaisdell and Apetz. The Collins property is separated from the Club by about 25 feet of ...