Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiffs, residents and taxpayers of the Town of West Orange, sought in this action in lieu of prerogative writs to set aside the granting of a variance by defendant Town Council of West Orange to defendant Tufariello. They appeal from an adverse judgment.
Tufariello is the owner of a 7.6-acre tract of land located at 572 Mt. Pleasant Avenue, West Orange. The tract extends southerly from Mt. Pleasant Avenue for a distance of 750 feet and easterly from Summit Street for a distance of 400 feet. Consisting of 22 lots and situated in an R-4 residential zone, it is bounded by Mt. Pleasant Avenue, a heavily travelled thoroughfare, to the north, Summit Street to the west, the 35-acre Kessler Institute for Rehabilitation and the six-acre Redwood Manor Nursing Home to the south, the 20-acre Daughters of Israel Home for the Aged to the southeast and four residential properties to the east. South of the Kessler Institute, situated on a 60-acre tract, is the United States Armory. A short distance west of Summit Street, across a vacant lot, is the West Orange dump and
incinerator. Directly across Mt. Pleasant Avenue are six houses.
Although the major portion of the property lies on a plateau, the land slopes downward approximately 80 feet in an easterly direction. There is a sheer rock formation, approximately 30 feet high, running along the northern edge of the property. In the northwest corner is a pinnacle of rock extending 20-25 feet above Mt. Pleasant Avenue. The westward edge of the tract slopes downward from the pinnacle until it becomes level at the southwest corner of the tract.
On September 25, 1964 defendant applied to the West Orange Building Inspector for a permit to construct a 100-unit garden apartment. Following the denial of the permit, defendant applied to the board of adjustment, pursuant to N.J.S.A. 40:55-39(d), for a recommendation to the town council that a special use variance be granted. The board of adjustment conducted a hearing on November 10, 1964, after which it unanimously adopted a resolution recommending that the variance be granted. In that resolution the board found, among other things, that the premises were bounded by the municipal dump and institutional properties, that the topography of the tract was extremely irregular and included extensive subsurface rock, that development of the land for residential use would result in inordinate expense and in only a partial utilization of the land, that one-family construction was not feasible because of topographical conditions, that the cost of installing utilities for one-family houses would be prohibitive, that the garden apartment would not have an adverse effect on traffic, that the proposed use was not incompatible with presently existing uses and that the application could be granted without substantial detriment to the public good or impairment of the zone plan and zoning ordinance.
The town council, by a vote of 3-2, rejected a resolution granting the variance and subsequently adopted a resolution disapproving the board's recommendation. In doing so it
made 11 findings in addition to concluding that the negative criteria required by the statute had not been met.
Tufariello next instituted an action in lieu of prerogative writ to review the council's action. At the hearing the court held that five of the council's findings were without factual support in the record made before the board of adjustment. The matter was thereupon remanded to the board for the taking of testimony as to those five items. In settling the procedure to be followed on the remand, the court ruled that since the board's personnel had changed, it was to take the testimony and note any objections but not to take a vote or make any findings, and thereafter to forward the transcript of the proceedings to the council which would then make its findings and determination. If the ultimate determination was adverse to Tufariello, the matter was to be returned to the court for its ruling.
Pursuant to the order, the board conducted a hearing at which four witnesses testified in opposition to the granting of the variance and Tufariello testified in favor. The transcript and exhibits of both hearings were then submitted to the council (whose membership was unchanged) which reversed its earlier decision and voted, 3-2, to grant the variance on the basis of the reasons set forth in the board of adjustment's original recommendation. Tufariello's original suit was eventually dismissed on the ground that it had been made moot by the granting of the variance.
In the meantime, plaintiffs filed their present suit challenging the council's allowance of the variance. The trial judge affirmed, holding, in effect, that there was adequate factual support for the board's original ...