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Desimone v. Greater Englewood Housing Corp.

Decided: July 6, 1970.

RAYMOND DESIMONE, DAVID MCERLANE AND ELLIOT STAGNERI, PLAINTIFFS-APPELLANTS,
v.
GREATER ENGLEWOOD HOUSING CORPORATION NO. 1, A NEW JERSEY CORPORATION; BOARD OF ADJUSTMENT OF THE CITY OF ENGLEWOOD; MAYOR AND COUNCIL OF THE CITY OF ENGLEWOOD; AND MAX PRIEGEL, BUILDING INSPECTOR OF THE CITY OF ENGLEWOOD, DEFENDANTS-RESPONDENTS. RAYMOND DESIMONE, DAVID MCERLANE AND ELLIOT STAGNERI, PLAINTIFFS-APPELLANTS, V. GREATER ENGLEWOOD HOUSING CORPORATION NO. 1, A NEW JERSEY CORPORATION; MAYOR AND COUNCIL OF THE CITY OF ENGLEWOOD; MAX PRIEGEL, BUILDING INSPECTOR OF THE CITY OF ENGLEWOOD; AND PLANNING BOARD OF THE CITY OF ENGLEWOOD, DEFENDANTS-RESPONDENTS. JERRY J. HERSCH, DAVID MCERLANE AND ELLIOT STAGNERI, PLAINTIFFS-APPELLANTS, V. THE CITY OF ENGLEWOOD, DEFENDANT-RESPONDENT, AND GREATER ENGLEWOOD HOUSING CORPORATION NO. 1, INTERVENOR-RESPONDENT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.

Hall

These consolidated appeals stem from Law Division judgments in five actions in lieu of prerogative writ sustaining the actions of administrative and legislative bodies of the city of Englewood in connection with a low and moderate income housing project being undertaken by defendant Greater Englewood Housing Corporation No. 1 (GEHC).

The project comprises 146 units of cluster-type, two-story apartments to be constructed on a 10 acre tract of city-owned land, leased to GEHC, in the Second Ward of the city (the Trumbull Park site), a district zoned for one-family dwellings and primarily white in population. GEHC is an approved non-profit housing sponsor, organized by the city's Galilee United Methodist Church and incorporated under the Limited-Dividend Nonprofit Housing Corporations or Associations Law, N.J.S.A. 55:16-1 et seq., as amended L. 1967, c. 112. The purpose of the project, which is to receive state and federal financial assistance, is to aid in the clearance and reconstruction of blighted areas in the predominantly black Fourth Ward of the city, necessitating relocation of many slum residents, and to provide low and moderate income families with safe, sanitary and decent living accommodations outside of that area. GEHC is also the sponsor of a companion project within the Fourth Ward (the Lafayette site), likewise in a one-family residential zone, as to which the municipal authorities acted similarly and contemporaneously and which has not been the subject of any litigation. Plaintiffs are taxpayer-residents of the

Second Ward and representatives of a local organization known as FACT (First Association of Citizens and Taxpayers).

Procedurally, the first captioned cause consists of three suits instituted in July and August 1969 and consolidated at the trial level -- one challenged the validity of the ground lease from the city to GEHC; another, a use variance under N.J.S.A. 40:55-39(d) for multi-family structures in a one-family zone recommended by the Board of Adjustment and granted by the city governing body; and the third, a bulk variance under N.J.S.A. 40:55-39(c) from certain height, sideyard and similar restrictions granted by the Board of Adjustment. Judgment in favor of the defendants was entered by Judge Trautwein on November 10, 1969. Plaintiffs thereafter appealed to the Appellate Division.

The second and third captioned causes were concerned with collateral matters and were commenced in November and December 1969. One attacked the favorable referral of tentative subdivision approval of the tract, subject to enumerated conditions, by the Planning Board under the city's subdivision ordinance and the approval thereof by the governing body. (Englewood has a "weak" Planning Board with power only of referral to the governing body as to subdivision approval. N.J.S.A. 40:55-1.14). The other involved a claim of illegality of an ordinance (No. 1819) adopted by the governing body, which was one of the conditions of tentative subdivision approval, vacating and relocating a paper street, running through a small public park west of the project, to give access to it from a main thoroughfare. GEHC was not originally a party to this last suit, but was permitted to intervene and, in order to avoid anticipated additional litigation by plaintiffs, to file a counterclaim for a declaratory judgment with respect to the validity of (1) final subdivision approval by the Planning Board and the governing body; (2) site plan approval by the Planning Board required by the city zoning ordinance

for all new buildings other than one-family dwellings; (3) another ordinance (No. 1820) adopted by the governing body amending the subdivision ordinance to authorize the Planning Board to waive the requirement of a performance guarantee in lieu of completion of mandated subdivision improvements if the applicant is a public or non-profit housing sponsor; and (4) the action of the Planning Board in waiving the same in the case of GEHC. (A third ordinance, No. 1818, vacating paper streets running through the project area, was apparently not the subject of any litigation.) The actions were consolidated for trial and judgment for the defendants was entered by Judge Trautwein on May 20, 1970.

On that date the appeal from the judgment in the first captioned cause was ready for argument in the Appellate Division. A few days later, plaintiffs not yet having filed the expected notice of appeal from the second judgment, GEHC filed a motion with us, on notice as prescribed by the Chief Justice. In effect, it sought certification of the pending appeal from the first judgment (R. 2:12-2), acceleration of any appeal from the second judgment with an abbreviated time schedule for the filing of briefs, and consolidated early argument before us of both matters. The motion was granted on May 26 for the reasons urged, viz., the litigation is of great public importance and urgently requires prompt final adjudication, both matters involve the same subject matter and common questions, and consolidation will avoid fragmentary and onerous appeals. We directed plaintiffs, if they intended to appeal from the May 20 judgment, to do so within five days, ordered the parties to exchange briefs by June 10, and set the matter down for oral argument with the first appeal on June 16. Plaintiffs did appeal and argument was heard along with that on the first appeal on the date last mentioned. We took such action pursuant to the general power in R. 1:1-2, inter alia, to construe all rules to secure the elimination of unjustifiable delay and to relax or dispense with any rule if adherence

to it would result in an injustice and to the express power provided in R. 2:9-2 to accelerate the time fixed by the rules for the taking of any proceeding on appeal or certification on the court's own motion or the motion of a party, which will be freely exercised where the public interest is involved and prompt final disposition is important. For the same reason we have expedited decision and the filing of this opinion.

The basic case in this panoply of litigation is that involving the use variance. The background and setting of GEHC's Trumbull Park project is thoroughly elucidated in the voluminous testimony and extensive exhibits presented to the Board of Adjustment. From that mass of evidence the following picture emerges.

Englewood, like many others, is a city of striking contrasts. It is five square miles in area and lies on the western slope of the Palisades in eastern Bergen County. The population of about 28,000 is 20% to 25% black. It is one of the older suburban residential communities adjacent to New York City, its white population is generally affluent, and its Master Plan described it in 1959 as almost wholly built up, with an exceedingly low housing vacancy rate.

By far the greater part of the black population lives in the Fourth Ward (the southwestern quadrant of the city), literally and figuratively "on the other side of the tracks," and a very high percentage of the housing there is substandard, much of it not capable of rehabilitation. The trial judge found:

(Plaintiffs expressly concede the need for low and moderate income housing in the Fourth Ward.)

Numerous prior efforts to provide some decent housing for the city's blacks have all failed. Not a single governmentally sponsored or assisted housing accommodation has been constructed. By reason of a racial disturbance in the city in July 1967, it became one of the communities scrutinized by the Governor's Select Commission on Civil Disorder. The Commission's "Report for Action" (February 1968) commented cogently on the housing situation, pointing out that prior efforts had foundered, in a sharply divided community, on the issue "whether to build within the Fourth Ward only, or whether to spread renewal beyond the ghetto." See discussion, op. cit. supra. at pp. 63-64. It recommended:

Englewood, which has the human and physical resources not only to solve its own problems but also to show the way to other communities, should consider reversing past decisions on its critical housing issue.

Political and community leaders, regardless of party, should work to unite all communities in support of solutions in accordance with public policy and the trend of the times toward residential integration. (op. cit. supra, at p. 169).

Obviously, the critical Englewood housing situation cries out for the active and continuous exercise of the highest responsible citizenship by all segments of the population and all governmental bodies. The governmental actions here under ...


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