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Brazer v. Borough of Mountainside

Decided: July 30, 1968.

SAUL BRAZER AND GLORIA BRAZER, HIS WIFE, PLAINTIFFS,
v.
BOROUGH OF MOUNTAINSIDE, A MUNICIPAL CORPORATION, AND THE PLANNING BOARD OF THE BOROUGH OF MOUNTAINSIDE, IN THE COUNTY OF UNION, DEFENDANTS



Civil action in lieu of prerogative writs.

Wood, Wm. Fillmore, J.c.c. (temporarily assigned).

Fillmore

[102 NJSuper Page 499] In this suit in lieu of prerogative writs plaintiffs challenge the ruling of the Mountainside Planning Board (hereinafter referred to as the board), which was affirmed by the borough council, requiring that they, as a condition for the approval of a subdivision of their property, provide a right of way across the property for the extension of a street known as Camelot Court. Defendants are the borough and the board.

The case raises difficult statutory and constitutional questions. Defendants contend that their action is authorized by statute (N.J.S.A. 40:55:-1.20). Plaintiffs, on the other hand, deny the existence of any such authority and, in addition, argue that defendants' action was an unconstitutional taking of their property without compensation. I have found no judicial precedents precisely in point.

The property in question is known as lot 3, Block 3A on the tax map of the borough and consists of a tract fronting on the northerly side of U.S. Highway No. 22 and extending in a northerly direction a distance of approximately 500 feet. The tract is 200 feet wide at the highway and 140 feet wide at the rear. Plaintiffs' original application sought permission merely to divide the tract into two lots, one in the front to be designated at lot 3 and the other in the rear as lot 3A.

In the vicinity of plaintiffs' property Camelot Court is approximately parallel to the highway, both running in an easterly-westerly direction. As now laid out and open, Camelot Court terminates at the westerly side of proposed lot 3A. However, on the master plan previously adopted by the board that street is shown as extending in an easterly direction across plaintiffs' property and connecting with a street known as Long Meadow. The latter street is described by defendants in their trial memorandum as a "primary collector street functioning to collect traffic from numerous minor and secondary streets, including Camelot Court, Nottingham Way, Juniper Way and Pembrook Road."

At the initial hearing on the above application, held in May 1967, the board was apparently concerned with whether plaintiffs' intended use of the rear lot would interfere with the proposed extension of Camelot Court as shown on the master plan. The application was held in abeyance until the June meeting; in the meantime plaintiffs filed a supplemental application seeking to subdivide the rear lot itself into two building lots, to be designated as lots 3A and 3B, respectively. The latter application clearly indicated that

plaintiffs' intended use would frustrate the board's plan for the extension of Camelot Court. The board granted the original application at the June meeting but, in order to preserve its master plan, imposed the condition previously mentioned.

The supplemental application was held in abeyance. Consequently that application is not involved in this suit except to the extent that the facts disclosed thereby prompted the board to impose the condition upon the granting of the original application.

Before proceeding with the merits of this case I shall dispose of a procedural question raised by defendants. They contend that the suit is barred because it was not brought within the time prescribed by R.R. 4:88-15. That rule requires that prerogative writ proceedings to review a municipal governing body's action of the type here involved be commenced within 45 days from the publication of notice of that action or the mailing of the notice to the applicant, whichever is later.

The complaint alleged that the council's affirming resolution was adopted on September 19, 1967, and the answer admitted the truth of that allegation. The complaint was filed on November 2, 1967, only 44 days after the adoption date stated in the complaint. If that adoption date is correct, the suit is clearly within time. The question of the timeliness of the suit was first raised at the pretrial conference. The borough changed attorneys between the filing of the answer and the pretrial conference, and the new attorney expressed a different view as to when the resolution was adopted. His view is that the resolution was adopted on September 5, 1967; that notice of the adoption was sent to plaintiff's attorneys on September 14, and that the time for this suit expired 45 days from the last-mentioned date, or on October 29. For a variety of reasons this view is faulty.

In the first place, there never was a newspaper publication of the notice as contemplated by the rule. Secondly, the notice sent to the plaintiffs' attorneys on September 14,

as reasonably understood by them, was not that the resolution had been adopted but that it would be adopted on September 19. The notice stated:

"The governing body of the Borough of Mountainside has decided to affirm the decision of the Planning Board with regard to the subdivision application of your client, Saul Brazer.

Formal opinion and findings of fact will be stated at the public meeting, Tuesday, September 19th 1967."

Hardly anyone reading this notice would have gotten the idea that the borough council had already taken what was considered formal action on the application.

Finally and most significantly, the action of the council on September 5 was not in fact a legally effective adoption of the resolution since that action was taken at what is known as a caucus meeting, that is, an informal meeting to which the public is not admitted and of which no public record is made. It is axiomatic that municipal governing bodies may take official action only at public meetings. Cf. Anschelewitz v. Borough of Belmar, 2 N.J. 178 (1949). Decisions ...


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