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Fischer v. Mayor and Council of Township of Brick

Decided: February 26, 1970.


Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.


[109 NJSuper Page 52] On June 20, 1968, after a public hearing, the governing body of the Township of Brick adopted two resolutions. By one of these it reversed the refusal of the planning board to approve an application of the housing authority of the township for subdivision of a 17-acre tract of land so that the authority could build a high-rise "senior citizens" residential project on 5.39 acres thereof which it had contracted to purchase for that purpose. By the other, it purportedly amended the zoning ordinance to permit the construction of the building as against existing zoning prohibition of erection of residential structures anywhere in the municipality exceeding 35 feet in height.

The latter action was taken to implement a "Cooperation Agreement" entered into between the housing authority and the governing body in June 1967 under and pursuant to the Housing Co-operation Law, N.J.S.A. 55:14B-1 et seq. , to effectuate the establishment of the senior citizens project aforementioned. In 1966 the governing body had approved the site selected for the project, reversing an original denial of approval of the site by the planning board.

The present appeal is from a determination by the Law Division invalidating the resolutions of June 20, 1968 on a complaint by neighboring owners of one-family dwellings that the stated actions of the governing body were illegal in that they violated in various respects the statutes concerning zoning and planning. The basic grievance of plaintiffs, asserted below and before this court, is the supposed discordance of a nine-story apartment building with the character of the residential neighborhood in which they live. It is to be noted, however, that the tract is on Chambers Bridge Road, both sides of which to a depth of 100 feet are strip-zoned for business. The rear of the tract is in an R.-7.5 zone permitting single-family residences, churches and professional offices.

The decision of the Law Division judge was based on the following reasoning: (1) The Housing Co-operation Law does not permit the governing body to "run roughshod" over a master plan once the planning board after a hearing finds that a particular project will "prove detrimental to the public good and contrary to the principles of zoning and planning as they exist in that municipality;" (2) a housing authority project is invalid unless there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford, or persons of low income are found to be living in the area in overcrowded or congested, etc., dwellings; (3) the conclusions of the governing body were not supported by evidence, and their actions were consequently "unreasonable and arbitrary."

In defending this appeal plaintiffs do not rely on the above-noted second ground of decision, and we do not discuss it beyond saying it has no merit. Further, we may summarily dispose of the argument in support of the trial court's conclusions that the actions of the governing body were arbitrary and capricious and without supporting evidence. In respect of the denial of subdivision approval by the planning board, that body's decision that the project would violate the master plan and adversely affect traffic patterns was subject to appellate reversal by the governing body. N.J.S.A. 40:55-1.19. We find from the whole record before us that the governing body properly exercised that authority here, and without arbitrariness or unreasonableness. Passaic Junior Chamber of Commerce v. Passaic Housing Authority , 45 N.J. Super. 381, 392 (App. Div. 1957). As to the planning board's reliance upon the violation of the building height regulations, the merits of this ground for its action stand or fall upon whether the governing body possessed the authority it exercised to exempt the project from those regulations under the Housing Cooperation Law -- a subject next discussed.

The pertinent statutes contain two allusions to zoning and building laws and regulations which require reconciliation. The Local Housing Authorities Law, L. 1938, c. 19 (N.J.S.A. 55:14A-11) provides:

All housing projects of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated. In the planning and location of any housing project, an authority shall take into consideration the relationship of the project to any larger plan or long range program for the development of the area in which the housing authority functions.

However, the Housing Co-operation Law, L. 1938, c. 20, adopted at the same time, contains provisions, N.J.S.A. 55:14B-4(d), 7, which permit the governing body by resolution and without public notice to "plan or replan, zone or rezone any part of such [municipality]; make exceptions

from building regulations and ordinances and change its map." The question before us is whether the action of the governing body violates or is authorized by the said legislation, read, as it must be, in pari materia.

The resolution in question, after reciting that the township had entered into a cooperative agreement with the housing authority pursuant to ...

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