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Drozdow v. Mayor and City Council

Decided: March 28, 1979.

ELZER DROZDOW, HENRY FEIGENBAUM AND SAMUEL SCHWARZMAN, A PARTNERSHIP, PLAINTIFFS-RESPONDENTS,
v.
MAYOR AND CITY COUNCIL OF THE CITY OF VINELAND, A MUNICIPAL CORPORATION, HOUSING AUTHORITY OF THE CITY OF VINELAND, AND LEO DUNN, ZONING OFFICER OF THE CITY OF VINELAND, DEFENDANTS, AND MAYOR AND CITY COUNCIL OF THE CITY OF VINELAND, A MUNICIPAL CORPORATION, AND LEO DUNN, ZONING OFFICER OF THE CITY OF VINELAND, DEFENDANTS-APPELLANTS, V. RANDOLPH D. BRANDT AND JUDITH M. BRANDT, HIS WIFE, JOSEPH A. VASTANO AND PAULA T. VASTANO, HIS WIFE, CARL SOLE AND FRANCES SOLE, HIS WIFE, AND JAMES P. DAVIS AND JOAN L. DAVIS, HIS WIFE, DEFENDANTS-INTERVENORS



On appeal from the Superior Court, Law Division, Cumberland County.

Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

The Mayor and Council of the City of Vineland (city) and a group of taxpayer-intervenors appeal from a judgment of the Superior Court, Law Division, requiring the city to adopt a resolution pursuant to the Housing Cooperation Law which would afford the zoning relief necessary for the implementation of the three low-rent public housing projects sponsored by the city's housing authority. We affirm.

The essential facts are not in dispute. Vineland, with an area of some 69 square miles and a population of some 50,000, includes urban, suburban and rural areas and shares the problems characteristic of such areas of this State. In 1965 the city entered into a Cooperation Agreement with the Housing Authority pursuant to the Housing Cooperation Law, N.J.S.A. 55:14B-1 et seq. , and more specifically N.J.S.A. 55:14B-4(e). The Cooperation Agreement included an undertaking by the city, insofar as it might lawfully so do, to "make such changes in any zoning of the site and surrounding territory of such Project as are reasonable and necessary for the development and protection of such Project and the surrounding territory." The Housing Cooperation Law, N.J.S.A. 55:14B-4(d), expressly authorizes the governing body to zone or rezone any part of the municipality in aid of a public housing project, and N.J.S.A. 55:14B-7 permits such implementing zoning or rezoning to be effected by simple resolution adopted by a majority of the governing body in lieu of the ordinance procedure otherwise required by N.J.S.A. 40:55D-62 (formerly N.J.S.A. 40:55-30 to 35). See Fischer v. Brick Tp. , 109 N.J. Super. 50, 56 (App. Div. 1970), certif. den. 56 N.J. 98 (1970); Bracey v. Long Branch , 73 N.J. Super. 91, 104 (Law Div. 1962).

As part of its low-cost public housing program, the Housing Authority conceived a development plan for the construction of approximately 150 single-family homes under

a federal "turnkey" program whereby the homes would be built by private developers, who would then sell them at a predetermined price to the Housing Authority, which in turn would make them available to eligible families. It was the Housing Authority's further plan that these homes be built on scattered sites throughout the city, no site to contain more than 25 separate units. Accordingly, early in January 1975 it solicited conforming proposals by public advertisement and received 29 separate proposals. Eight of these proposals were submitted by plaintiffs, a partnership made up of three local builders. After reviewing the proposals the Housing Authority selected nine, five of which had been submitted by plaintiffs and all of which complied with the bulk requirements of the R-3 and R-4 residential zones in which the respective sites were located.*fn1

Plaintiffs' five proposals were approved by the Housing Authority on October 1, 1975, and plaintiffs were instructed to and did proceed with the processing thereof in accordance with the requirements and procedures of the Housing Authority and the federal regulatory agency, namely, the Department of Housing and Urban Development (HUD). Simultaneously with these events the city decided to up-grade its bulk requirements for all of its residential zones. Ordinance 976, later somewhat modified, accomplishing that purpose was enacted in November 1975. As a result of that upgrading three of plaintiffs' five proposals were rendered nonconforming as to lot area and dimensions.*fn2 These three proposals are referred to as the Luciano Avenue site, the Di Falco Avenue site, and the Linwood Avenue site. The

first two are located in the R-3 residential zone and the last in the R-4 residential zone. These sites were projected to contain a total of 59 single-family homes distributed as follows: 25 on the Luciano Avenue site, 19 on the Di Falco Avenue site and 15 on the Linwood Avenue site.

The effect of the upgrading ordinance was to reduce the total of conforming lots to 43, eliminating 7 lots from the Luciano site, 6 from the Di Falco and 3 from the Linwood. These reductions were caused by an upgraded minimum lot requirement in both the R-3 and R-4 zones from 11,250 to 15,000 square feet. Additionally, the minimum lot depth in both zones was increased to 135 feet, that in R-3 having been 120 feet and in R-4 125 feet. Although the R-3 minimum lot frontage was restored to its original 75 feet, the R-4 frontage was increased from 75 to 100 feet. Additional bulk requirements were imposed in respect of corner lots in both zones. Both the R-3 and R-4 zones in the area of the sites in question are for the most part substantially developed, not only in terms of block, lot and street layout, but also in respect of actual residential use. That development substantially accorded with original bulk requirements. As a result of Ordinance 976 more than half of the improved lots and more than half of all lots in each of the subject sites and their surrounding areas were rendered nonconforming. In respect of the Di Falco site and its surrounding area, 72% of all the 316 lots therein contained are now nonconforming and 71% of all improved lots are now nonconforming. The proofs further show that many of the laid-out blocks in the R-3 zone are of insufficient width to accommodate 75 front-foot lots, back to back, which could conform with the upgraded area requirements.

Finally, with respect to the three projects here involved, the Housing Authority made routine inquiry of the agencies of the city providing police, sewerage, water and health services concerning any foreseeable development problems. The reports of these agencies were all to ...


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