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Kramer v. Board of Adjustment

Decided: June 28, 1965.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. Hall, J., concurs in result.

Per Curiam

The Superior Court, Law Division, sustained the granting of a variance from the zoning ordinance of the Borough of Sea Girt, Monmouth County to permit the construction of a hotel in a residential zone. The variance was recommended by the local Board of Adjustment and approved by the governing body of the Borough pursuant to N.J.S.A. 40:55-39(d). The objecting property owners who had attacked the action of the local boards appealed from the Law Division judgment and the matter was certified on our own motion before argument in the Appellate Division.

Study of the record and briefs has led us to conclude the judgment should be affirmed substantially for the reasons

expressed by Judge Knight in the Law Division. His unreported opinion follows:

"This is a consolidated action in lieu of prerogative writs challenging a variance recommended by the Board of Adjustment of Sea Girt and granted by the governing body. The matter has been in litigation since 1962 and is presently before this court for the third time. On two previous occasions defendant Stockton Hotel, Inc. obtained a variance to construct a new hotel in an area zoned for single-family residential use. A hotel presently exists on the property as a nonconforming use.

In each of the prior actions the variance granted was set aside because of procedural deficiencies.

Plaintiffs again raise several objections to the procedures followed at the municipal level, and urge that these alleged procedural deficiencies are of sufficient magnitude to warrant setting aside Stockton's variance for the third time. Even though several of the contentions relate to form rather than substance, the court will consider each argument separately.

Plaintiffs first allege that the Board of Adjustment lacked jurisdiction to act because neither the date fixed for the first hearing nor the notice given conformed to the requirements of N.J.S.A. 40:55-44. This section in part provides:

"The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, giving due notice thereof to the appellant. Said appellant shall at least 10 days prior to the time appointed for said hearing give personal notice to all owners of property situate within or without the municipality, as shown by the most recent tax lists of the municipality or municipalities, whose property or properties as shown by said lists are located within 200 feet of the property to be affected by said appeal.'

It is argued by plaintiffs that the following sequence of events supports their contention. On October 18, 1963 Stockton filed with the Borough Clerk, who was also Secretary of the Board of Adjustment, an application under N.J.S.A. 40:55-39(d) for a use variance to allow the construction and

operation of a 'year 'round hotel.' At that time, and without consulting the members of the Board, the Secretary scheduled the first hearing for 9:00 A.M., November 4, 1963, at the Sea Girt Borough Hall. At a public meeting of the Mayor and Council on October 22, 1963 the resignations of the Chairman and three other members of the Board of Adjustment effective November 5, 1963 were announced. At said meeting the Chairman also announced that the hearing of Stockton's application, fixed for November 4th, would be adjourned to a subsequent date, although no specific date was mentioned. The Mayor and Council accepted the resignations effective November 5, but no appointees were named to fill the vacancies. Two newspapers of general circulation in Sea Girt carried front-page news items of the resignations. On October 29, 1963, the Board of Adjustment met and conducted a hearing on another matter. At this meeting the Chairman again announced his resignation and the resignation of three other members. The Board again met on November 4, 1963 at 9:00 A.M. The applicant, its attorney, the attorney for the objectors, and five or six other persons were present. The only action taken, over objection by counsel for the objectors, was to adjourn the hearing on the Stockton application to November 7, 1963. Notice of this adjournment appeared in the November 7 issue of the Coast Star, a weekly newspaper of general circulation in Sea Girt. A notice of the adjournment was also posted on the bulletin board in the Borough Hall.

Plaintiffs argue that the act of posting and publishing of notices in this fashion was insufficient to satisfy the requirements of N.J.S.A. 40:55-44; and further, that the facts as set forth above, taken in their entirety, likewise indicate a violation of the statute.

The two published notices of the meeting for November 7, 1963, do not operate as sufficient notice within the meaning of N.J.S.A. 40:55-44. However, defendant Stockton does not rely on these notices to support its claim of compliance with the statute. Rather, defendant maintains that every property owner within 200 feet of the property in question

was duly notified more than 10 days prior to the scheduled Board meeting of November 4 -- a meeting which in fact took place at the precise hour and date mentioned in the notice.

The provisions of N.J.S.A. 40:55-44 were designed for the benefit of those property owners situated within 200 feet of the affected property, and since the hearing fixed in the present case was in complete accord with the notices sent to these people, there is no justification for the assertion that the requirements of the statute have not been met.

Moreover, the argument that the Board of Adjustment did not 'fix a reasonable time for the hearing' as required by the statute is without merit. There is no allegation that any of the interested property owners were actually inconvenienced by this action, despite the fact that the Board of Adjustment meeting was scheduled for 9:00 A.M., an unprecedented occurrence in Sea Girt.

The fact that the resignations of four Board members caused some confusion, and also that the Secretary of the Board (rather than the Board itself) fixed the date for the first hearing are harmless irregularities, particularly in the absence of an allegation that any interested property owner was prejudiced as a result thereof. It is true that the requirements of N.J.S.A. 40:55-44 are jurisdictional. Oliva v. City of Garfield, 1 N.J. 184 (1948); Hendey v. Ackerman, 103 N.J.L. 305 (Sup. Ct. 1926). In these cases, however, no notice of any type was given to landowners within 200 feet of the subject property. Such is not the case here, and under the circumstances, the Court is of the opinion that there was compliance with the requirements of N.J.S.A. 40:55-44.

Plaintiffs next assert that Stockton's present application for a variance is barred by the doctrine of res judicata. This argument is premised on the fact that Stockton appealed to the Board of Adjustment on February 2, 1963 for a substantially identical variance. On March 26, 1963 the Board recommended that the variance be granted, and on April 9, 1963 the Mayor and Council adopted the Board's recommendation.

Thereafter, plaintiffs commenced an action in lieu of prerogative writs claiming, inter alia, that the Board's vote taken in executive session violated the 'Right to Know Law' (N.J.S.A. 10:4-1 et seq.). Plaintiffs prevailed upon this ground and their motion for summary judgment was granted. See Kramer v. Bd. of Adjust., Sea Girt, 80 N.J. Super. 454 (Law Div. 1963).

Plaintiffs now contend that since the vote taken by the Board on March 26, 1963 was void, the Board, in effect, did not render any decision within 90 days from the date of Stocton's application. In this event, R.S. 40:55-45 provides that the appeal 'shall be deemed to be decided adversely to the appellant in the same manner as though said Board had rendered a decision to that effect.'

Plaintiffs seek to equate this result with the 'statutory denial' cases such as Miller v. Boonton Tp. Bd. of Adjustment, 67 N.J. Super. 460, 470 (App. Div. 1961); cf., Griggs v. Zoning Bd. of Adjustment, Princeton, 75 N.J. Super. 438, 442 (App. Div. 1962). However, in these latter cases, even if it be assumed that res judicata would apply, the Board's action is tantamount to a denial of the application because the resolution fails to receive the requisite number of votes. Such is not the case here, and regardless of the legal characterization which plaintiffs endeavor to impart to the Board's prior decision, Stockton's application has yet to receive an adjudication adverse to the applicant on the merits. Accordingly, this contention must be rejected.

A more troublesome contention raised by plaintiffs is the allegation that one or more members of the Board of Adjustment and of the governing body were disqualified from passing upon the Stockton application because they had prejudged the matter. In addition to denying this allegation, defendant Stockton characterizes it as 'scandalous and shocking,' and objects to any probing of the mental processes of the Sea Girt public officials as contrary to the policy and specific prohibitions recently declared by our Supreme Court in State v. LaFera, 42 N.J. 97 (1964).

In LaFera, Chief Justice Weintraub, speaking for the court, condemned the attempt of a paid investigator to indirectly probe the verdict and deliberations of a jury by 'contacting relatives, friends, and associates under a multiple of guises, in the hope that something useful would emerge.' 42 N.J., at p. 105. However, even assuming that the deliberations and verdict of a jury are sufficiently analogous to the deliberations, findings, and conclusions of administrative bodies, the LaFera case is nevertheless readily distinguishable from the case at bar. What was condemned in LaFera was the fact that defendants hired a private investigator based upon 'nothing more than a sense of shock induced by the verdict of guilty.' In this regard, the Court stated:

'It may appear odd to recognize a ground for the invalidation of a verdict while denying a litigant a chance to find out whether such an event perchance did occur. The fate of a defendant is thus made to depend upon sheer luck, that the wrongful event somehow comes to light. The weight of the criticism is appreciated, but when contending values clash in their demands, a balance must be struck, and the balance struck is not shown to be a poor one because in some unknowable cases there may be an injustice.' 42 N.J., at p. 107

The Court did not define the quantum of independent evidence of bias or prejudice which would suffice. However, if such a preliminary showing is deemed to be necessary in order to justify a probing of the factfinder's mental processes, the Court is of the opinion that the minimum standard has been met in this case. It is undisputed that the Stockton application received great publicity almost from the outset, and the matter soon became a subject of deep moment to the community. As is almost inevitable in such cases, the seeds of political controversy were sown, with private citizens as well as public officials taking an active role in the debate.

Plaintiffs allege that the then Mayor of Sea Girt and at least one Councilman made various public statements, mostly in connection with the April 1963 primary in Sea Girt, which statements might be construed as expressions of opinion on the Stockton variance. These allegations are supported by

exhibits marked into evidence. In particular, one of the exhibits contains a newspaper advertisement paid for by the 'Citizens' Committee for Re-election of Mayor Doyle.' Listed as one of the Mayor's qualifications is the fact that: 'He has a realistic attitude toward the Stockton Hotel.' Among those whose names are listed in the advertisement as endorsing the Mayor's platform are the four members of the Board of Adjustment who participated in the Stockton application.

Plaintiffs have failed to produce evidence which clearly indicates that certain members of the Board of Adjustment and governing body prejudged the Stockton application. To the contrary, based solely on the exhibits and information adduced on pretrial discovery, the issue of prejudgment is at best a debatable one. In such a case, a balance of contending values must be struck. State v. LaFera, supra. This Court has not overlooked the right of public officials to be free from a probing investigation of this sort. But to be weighed against this factor is the right of the objectors to a hearing; and a hearing before an administrative tribunal acting quasi -judicially implies that the factfinder 'shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action.' Penna. R.R. Co. v. N.J. State Aviation Com., 2 N.J. 64, 70 (1949). And see Handlon v. Town of Belleville, 4 N.J. 99 (1950); Borgia v. Board of Review, 21 N.J. Super. 462 (App. Div. 1952).

Unlike LaFera, this is not a case where plaintiffs have sought to probe the mental processes of the factfinders based upon nothing more than dissatisfaction with their decision. Thus, under the circumstances of this case, the Court is of the opinion that the strong policy against probing the motivations of a quasi -judicial body is outweighed by the right to a fair hearing consistent with fundamental standards of due process.

At the conclusion of plaintiffs' case, defendant Stockton moved to dismiss plaintiffs' allegations ...

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