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Young Women''s Christian Association of Summit v. Board of Adjustment

Decided: April 18, 1975.

YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF SUMMIT, NEW JERSEY, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
BOARD OF ADJUSTMENT OF THE CITY OF SUMMIT AND MARTIN J. EGAN, BUILDING INSPECTOR OF THE CITY OF SUMMIT, DEFENDANTS



Davidson, J.s.c.

Davidson

Plaintiff Young Women's Christian Association of Summit is the owner of premises located in the R-15 single-family district of Summit, as established under its zoning ordinance adopted June 5, 1968 as amended. The Association has been authorized by the Division of Youth and Family Services of New Jersey to operate a group home on the premises for not more than ten adolescent girls to be referred there by the Division.

In November 1974 a local citizens' group filed an application with the board of adjustment seeking an interpretation of the zoning ordinance and a declaration that plaintiff's proposed use of the premises would be in violation of the ordinance.

A hearing was conducted and on February 3, 1975 the board adopted a resolution declaring the proposed use to be in violation of the zoning ordinance and directing the building inspector to refuse to issue a certificate of occupancy. Based upon that resolution the building inspector refused to issue the certificate by letter dated February 18, 1975.

Plaintiff thereupon filed a complaint in lieu of prerogative writs asking this court to (1) declare the board's resolution of February 3, 1975 void; (2) declare the proposed use of the premises to be permitted under the ordinance; (3) enjoin the Board from taking any further action to prevent the use of the premises as a group home, and (4) direct

the building inspector to issue a certificate of occupancy for use of the premises for that purpose.

The facts are not in dispute and the matter is now before the court on a motion for summary judgment.

Plaintiff contends that the board lacked jurisdiction to grant the applicants the relief requested under both the enabling state legislation and the provisions of the ordinance. This court accepts the correctness of that position.

Our State Constitution grants to the Legislature the power to enact legislation enabling municipalities to adopt zoning ordinances. N.J. Const. (1947), Art. IV, ยง VI, par. 2; N.J.S.A. 40:55-30 et seq. Under the enabling legislation a board of adjustment is a "statutory, quasi -judicial body whose powers and jurisdiction are specified and strictly delimited by N.J.S.A. 40:55-39." Auciello v. Stauffer, 58 N.J. Super. 522, 527 (App. Div. 1959).

The resolution passed by the Summit Board of Adjustment on February 3, 1975 includes the finding that the matter came before the board by application pursuant to N.J.S.A. 40:55-39(a) and (b), which read as follows:

The board of adjustment shall have the power to:

a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or ...


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