author: Handler, J. A. D.

text:
    TOWNSHIP OF SOUTH BRUNSWICK, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT, v. NEW JERSEY TURNPIKE AUTHORITY, A PUBLIC BODY, CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. WILLIAM T. CAHILL, GOVERNOR OF STATE OF NEW JERSEY, RICHARD J. SULLIVAN, COMMISSIONER OF ENVIRONMENTAL PROTECTION AND THE NEW JERSEY TURNPIKE AUTHORITY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 23, 1973
    Decided June 17, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Alfred P. Opdyke argued the cause for appellant Township of South Brunswick (Messrs. Strong, Strong, Gavarny & Longhi, attorneys; Mr. Robert A. Longhi of counsel).

      Mr. Samuel C. Inglese argued the cause for appellant Township of Monroe.

      Mr. Bernard M. Reilly argued the cause for respondents (Mr. Herbert I. Olarsch, attorney).
   The opinion of the court was delivered by

Handler, J. A. D.

By chapter 38, Laws of 1973, N. J. S. A. 27:23-23.3 et seq., effective May 35, 1973, the New Jersey Turnpike Authority (Turnpike Authority) became authorized to construct an extension to the New Jersey Turnpike from the area of the New Brunswick Interchange 9 of the Turnpike, in a general southeasterly direction, to a point in the vicinity of Toms Biver and the Garden State Parkway. The Turnpike Authority was prohibited from initiating the project unless the Governor, upon reviewing an environmental impact statement after consulting with the Commissioner of Environmental Protection, declared that the environmental impact statement "adequately provides for minimization of any adverse environmental impact of such project and that such project is in the best interests of the people of this State.” N. J. S. A. 27:23-23.4. The statement on the project was to be prepared in accordance with guidelines to be established by the Commissioner of Environmental Protection. N. J. S. A. 27:23-23.5.

On August 22, 1972 the Commissioner of Environmental Protection promulgated detailed guidelines governing the preparation of the environmental impact statement for the Turnpike extension project. These guidelines were established in accordance with the Administrative Procedure Act of 1968, N. J. S. A. 52:14B-1 et seq., and were incorporated into the New Jersey Administrative Code, N. J. A. C. 7:1A-1.1 et seq. The guidelines directed generally that the environmental impact statement “provide the information needed to evaluate the effects of a proposed project upon the environment.” N. J. A. C. 7:1A-1.1(a).

Thereafter the Turnpike Authority engaged several consulting firms to prepare an environmental impact statement. Their initial draft statement dealt with one major route for the extension, referred to as the Red alignment. There were also included several partial alternate routes, but since these alternates were not recommended for the project, no separate study of their impact on the environment was presented.

On October 5, 1972 the Turnpike Authority received authorization from the Commissioner of Environmental Protection to print and circulate the draft statement and to hold public hearings. These hearings were held in Monmouth County on December 12, 1972, in Ocean County on December 13, 1972, and in Middlesex County on December 14, 1972. At these hearings the Red alignment was presented, but in addition two other major routes, designated as the Blue and Green alignments, were also brought before the public. Shortly thereafter, a supplementary environmental impact statement covering the Blue and Green alignments was released. No further public hearings were held concerning the content of this abbreviated supplementary statement.

On January 9, 1973 the Turnpike Authority selected a different route, referred to as the Yellow alignment, for the proposed expressway. No separate or additional environmental impact statement was prepared with respect to the Yellow alignment nor were public hearings held on this proposal. On April 4, 1973 the Commissioner of Environmental Protection recommended to Governor Cahill that he approve the Expressway Project and the recommended Yellow alignment, subject to 12 conditions. On April 13, 1973 Governor Cahill approved this recommendation with the conditions in accordance with the Commissioner’s advice.

The separate appeals taken by the Township of South Brunswick (South Brunswick) and the Township of Monroe (Monroe) focus upon the asserted invalidity and inadequacy of the environmental impact statement. Eor that reason they are treated in a single opinion. It is argued, although not identically by each appellant, that the environmental impact statements did not comply with administrative environmental guidelines; it is also contended that the statements did not apply to major portions of the approved alignment and were not, therefore, statements on the project; further, it is asserted that the Turnpike Authority did not make information on this final alignment available to interested members of the public and failed to hold a public hearing thereon.

At the outset we consider whether the Turnpike Authority, in compiling the initial draft, supplementary and final environmental impact statements, has complied with the statutory criteria contained in N. J. S. A. 27:23-23.4 and 23.5, and the administrative guidelines, N. J. A. C. 7:1A-1.1 et seq., promulgated pursuant thereto.

N. J. S. A. 27:23-23.4 states:

The authority may not acquire any land, erect any structure, nor alter the landscape for the purpose of carrying out the project * * * unless and until the Governor, upon reviewing the environmental impact statement i:" * * and upon consulting with the Commissioner of Environmental Protection, shall declare that such statement adequately provides for the minimization of any adverse environmental impact of such project and that such project is in the best interests of the people of this State.

N. J. S. A. 37:33-33.5 provides in part:

The authority shall submit to the Governor an environmental impact statement on the project described in section [3] in accordance with guidelines to be established by the Commissioner of Environmental Protection * * *.

The Commissioner of Environmental Protection issued guidelines for the preparation of the environmental impact statement required for the extension, which were published as N. J. A. C. 7:1A-1.1 to 1.4. In addition to the directive that the statement provide information as to effects upon the environment (N. J. A. C. 7:1A-1.1 (a)), it was required that “[t]he impacted corridor area to be studied in detail shall be of sufficient width to encompass all of the alternatives considered,” N. J. A. C. 7:1A-1.2(a), and that there be included a description and evaluation of each alternative right-of-way alignment. N. J. A. C. 7:1A-1.2(b) (5) (ii).

It is clear that the Legislature has enacted a statute “setting forth in broad design its intended aims, leaving the detailed implementation of the policy thus expressed to an administrative agency.” Cammarata v. Essex County Path Comm'n, 36 N. J. 404, 410 (1958). Thus, in construing these administrative guidelines the object must be to fulfill the essential purposes of the legislative enactment.

The legislative goals can be extracted in large measure from the National Environmental Policy Act of 1969 (NEPA), 43 U. S. C. § 4321 et seq. The state statute is virtually identical with the national act, and the administrative guidelines were patterned closely after the federal model. See, e. g., Environmental Def. Fund, Inc. v. Coastside Cty. W. Dist., 27 Cal. App. 3d 695, 701; 104 Cal. Rptr. 197, 200 (D. Ct. App. 1972). It has been observed from the legislative history of NEPA that the federal counterpart of N. J. A. C. 7:1A-1.2 is a.mandatory “action-forcing” requirement, and the criteria contained therein should not be applied mechanically mei’ely to satisfy the statute or be construed so narrowly as to blunt their import and effect. Calvert Cliffs' Coord. Com. v. United States A. E. Com’n, 146 U. S. App. D. C. 33, 449 F. 2d 1109, 1112-1113 (1971). These procedural strictures are not “inherently flexible,” but rather demand “a particular sort of careful and informed decision-making process and creates judicially enforceable duties.” Id. at 1115.

While perfection is not required (Cape Henry Bird Club v. Laird, 359 F. Supp. 404, 411-412 (W. D. Va.), aff’d 484 F. 2d 453 (4 Cir. 1973)), “nothing less than a complete impact statement” can fulfill the mandate of the operative law. Environmental Defense Fund, Inc. v. Froehlke, 473 F. 2d 346, 350 (8 Cir. 1972). There must be consideration of all enumerated environmental factors. Zabel v. Tabb, 430 F. 2d 199, 211 (5 Cir. 1970), cert. den. 401 U. S. 910, 91 S. Ct. 873, 27 L. Ed. 2d 808 (1971). The statement must contain a “thorough and rigorous analysis of environmental risks.” Brooks v. Volpe, 350 F. Supp. 269, 276 (W. D. Wash. 1972), aff’d 487 F. 2d 1344 (9 Cir. 1973). It must not only “'catalog environmental facts,” but it should also explain fully the underlying reasoning and conclusions in order for the courts and the public to assess and critically evaluate the agency’s decision. Environmental Defense Fund, Inc. v. Froehlke, supra 473 F. 2d at 351; Ely v. Velde, 451 F. 2d 1130, 1139 (4 Cir. 1971).

With regard to alternatives, a primary purpose of the statement is to insure that all pertinent information is collated for the officials who must evaluate the impact of different solutions in order to determine which will inflict the least detriment upon the environment. Natural Resources Defense Council, Inc. v. Morton, 148 U. S. App. D. C. 5, 458 F. 2d 827, 834 (1972). Thus, a full and complete study is an integral part of the decision-making process. Environmental Defense Fund, Inc. v. Corps of Eng., U. S. Army, 470 F. 2d 289, 295 (8 Cir.), aff’g 342 F. Supp. 1211 (E. D. Ark.), applications for injunctions den. 409 U. S. 1072, 93 S. Ct. 675, 34 L. Ed. 2d 661 (1972), cert. den. 412 U. S. 931, 93 S. Ct. 2749, 37 L. Ed. 2d 160 (1973). It follows that an environmental impact statement should include a careful and thorough treatment of each viable alternative to the project. Monroe County Conservation Council, Inc. v. Volpe, 472 F. 2d 693, 697-698 (2 Cir. 1972).

Ranged against the command that an environmental impact statement encompass an analysis of all alternative alignments, the Commissioner’s conclusion, which was adopted by the Governor, that "the recommended route is within the study corridor” was in error. Since this route was the one selected, by definition, it constitutes an alternative alignment required to have been considered in such a study. N. J. A. C. 7:1A-1.2(a); N. J. A. C. 7:1A-1.2(b) (5) (ii). The Yellow alignment, we note, does coincide to a great extent with the southeastern segment of the alignment originally included in the draft statement. Nevertheless, critical examination reveals that substantial sections of the Yellow alignment are not within the bounds of the so-called impacted corridor area which was the subject of detailed study. To this extent, this is a flaw which-, in our opinion, invalidates the final executive action taken in approving this route for the Turnpike extension project.

Actually, it is something of a misnomer to speak of a single study corridor. As mentioned, the original alignment considered was the Red alignment, together with several variations in certain areas. As to this route, there were several study corridors or areas, the width of which varied with the particular environmental factor under consideration. Eor example, noise studies were conducted on residences and acoustically sensitive nonresidential buildings within 2,000 feet of either side of the Red alignment. Socio-economic factors were studied within one mile of either side of the alignment. Additionally, since it was felt that major socio-economic impacts would be concentrated near interchanges, a study area within a three-mile radius of each interchange was prescribed. A corridor 2,000 feet to either side of the Red alignment was selected for study of air quality, water resources, soils, vegetation, wildlife and other natural resources. Open space, recreation and related land uses were also studied within 2,000 feet of the Red alignment, and effects upon community institutions were examined within 1,000 feet of either side of the proposed alignment.

The Yellow alignment appears to be in excess of 3,600 feet from the Red alignment, as measured from the points where they both intersect the Turnpike. In addition, the closest the Red alignment comes to the Yellow alignment in the area of the western terminus of the route is approximately 2,700 feet. Thus, in the vicinity of the Turnpike,’the Yellow alignment lies entirely outside the impact corridor studied for the effects of noise and impacts upon water resources, air quality, soils, vegetation, wildlife, natural resources, open spaces and community institutions.

Other portions of the Yellow alignment (generally from mileposts D21 to D23 and D28 to D32 on the illustrative maps) also fall entirely without the impact corridors utilized for the Red alignment, or are so near the outer perimeters of these corridors as to render those studies inadequate when related to the route selected. It must be further noted that numerous environmental factors were not separately examined in the supplementary impact statement prepared for the Green and Blue alignments, and no corridor referable to these alignments is identified for many of the factors that were included in the original study. Consequently, the defects attending the Red alignment study corridors, as applied to the Yellow alignment, have not been compensated for by the supplementary impact statement involving the Green and Blue alternatives. Cf. Environmental Defense Fund, Inc. v. Froehlke, supra.

We conclude, therefore, that the environmental impact statement did not include in its preparation a study of impacted corridors of sufficient width to encompass the alternative that was ultimately selected. As a consequence, the statement did not in this respect include all alternative right-of-way alignments, which was contrary to N. J. A. C. 7:1A-1.2(a) and for that reason it was not prepared in accordance with applicable administrative guidelines as required under N. J. S. A. 27:23—23.5.

The failure to prepare an adequate environmental impact statement applicable to the Yellow alignment cannot be excused, as urged by respondent, on the ground that the ultimate determination to approve that alignment was not arbitrary or capricious. It is suggested, in effect, that there was substantial compliance with statutory and administrative directives because the studies actually undertaken were quite thorough and can be related reasonably to the Yellow alignment without undue extrapolation.

The guidelines specify that the environmental impact statement shall include certain factors. These are a description of the project, including technical data and information sufficient to enable the environmental impact to be carefully assessed; the probable impact of the project on ecological systems, including primary and secondary impacts; any probable and unavoidable adverse environmental effects; an evaluation of the procedures which will minimize these adverse effects; a comparative evaluation of long-term and short-term environmental effects, and a quantitative identification of any irreversible and irretrievable commitments of resources necessary to implement the program. N. J. A. C. 7:1A—1.2.

Judicial review of administrative action in this area must be responsive to these criteria. The court should consider, therefore, whether the agency has conscientiously balanced competing considerations. Calvert Cliffs' Coord. Com. v. United States A. E. Com’n, supra 449 F. 2d at 1113-1114 (n. 9) and 1115. It must also determine whether the administrative evaluation sufficiently accounts for environmental factors. Environmental Defense Fund, Inc. v. Corps of Eng. U. S. Army, supra 470 F. 2d at 300; cf. Citi zens To Preserve Overton Park v. Volpe, 401 U. S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); Zabel v. Tabb, supra, 430 F. 2d at 211. The court, in exercising its function of judicial review, ads as a guardian of the statute to insure that its mandate is fulfilled and that all environmental factors are considered. Save Our Ten Acres v. Kreger, 472 F. 2d 463, 467 (5 Cir. 1973). See Citizens To Preserve Overton Park, Inc. v. Volpe, 335 F. Supp. 873, 876-877 (W. D. Tenn. 1972), remanded 357 F. Supp. 846 (W. D. Tenn. 1973). Cf. N. J. Sports & Exposition Authority v. McCrane, 61 N. J. 1, 62-66 (Hall, J., concurring and dissenting in part), cert. den. 409 U. S. 943, 93 S. Ct. 271, 34 L. Ed. 2d 215 (1972), aff'd 62 N. J. 248 (1973); Texas East. Trans. Corp. v. Wildlife Preserves, Inc., 48 N. J. 261, 272 (1966), aff’d 49 N. J. 403 (1967).

Because the noninelusion in the final environmental impact statement of the Yellow route as one of the alternative alignments is a fatal defect, the administrative and executive action in approving that route for the extension project must be declared invalid. We need not, therefore, resolve the related question as to whether that action was arbitrary or capricious because of a failure to examine in depth many of the factors required to be considered by the administrative regulations. For example, in the original draft statement which focused upon the Red alignment, some of the minor alternative routes mentioned therein fell outside the one-mile socio-economic study and others were beyond the areas examined for noise, air and water quality, soils and vegetation effects. While a three-mile radius was utilized to study the socio-economic impact at major interchanges, the area to the northwest of the Turnpike at the proposed interchange of the Turnpike with the Red alignment apparently was not studied. With respect to the supplemental statement applicable to the Blue and Green alignments no study corridors were delineated therein and in particular no corridor was identified with respect to air quality, vegetation, water resources, open space and recreation factors. Wildlife, soils and community institutions were not studied at all. The effect of the proposed Red, Blue and Green alignments on water resources seems not to have been based on any careful analysis. Similarly, the relative impact of these routes on surface water was not evaluated on the basis of the data collected and no full studies were undertaken with respect to wildlife because of “time constraints and the time of year.”

Thus, it would appear that the environmental impact statements in some respects may not have complied with the legislative and administrative mandate that all pertinent factors impinging upon the environment in its very broadest sense be explored thoroughly. These apparent substantive inadequacies are magnified by the attempt to apply the statements to the path which was finally proposed since, to reiterate, in material areas it did not coincide with the alignments actually studied. These observations would serve only to strengthen the conclusion, which we have reached, that the environmental impact statements were invalid because they did not include the Yellow alignment.

It is also contended that the action taken in selecting the final path for the Turnpike extension is invalid because no public hearings were conducted under N. J. A. C. 7:1A-1.3 with regard to the Yellow alignment. Public hearings were conducted in Middlesex County on December 14, 1972 to determine the feasibility of the Red, Blue and Green alignments (although the supplementary statement applicable to the latter two routes was not available until after the hearing). It is now asserted that the public was not given the opportunity to express its views with respect to the impact of the road upon an area referred to as the Pidgeon Swamp. It is true that none of the South Brunswick or other municipal or county officials voiced any concern for the Pidgeon Swamp at the time of the public hearing. This is understandable since the draft impact statement which had been disseminated before the hearing rejected the Red alignment alternates because of their threatened intrusion upon this swamp area. There was also qualified opposition expressed by representatives of South Brunswick with respect to the northern terminus of the project at the existing Turnpike. It should be pointed out, however, that this juncture was the same for all three alternative alignments — the Red, Blue and Green — but it was quite different from the terminus which was included in the final proposal for the Yellow alignment. With respect to its course through Middlesex County, the Yellow route, in significant respects, did conform to an alignment suggested by the Monroe Township Planning Board and recommended by the mayor of Monroe Township. It may be noted, however, that at the public hearing there was some opposition expressed with respect to the mayor’s proposal, and a public hearing on this was sought.

The failure to conduct a public hearing on the route ultimately selected was in direct contravention of N. J. S. A. 27:23-23.5, N. J. A. C. 7:1A-1.2(2) and N. J. A. C. 7:1A—1.3, which require that the public be informed by an impact statement prior to hearings so that they may adequately comment upon the proposed alternate alignments within a defined corridor. It is to be emphasized that the draft of the environmental impact statement must be certified as to its completeness by the Commissioner. N. J. A. C. 7:1A-1.3 (b). It is this draft which is then required to be disseminated and which becomes the subject of the public hearings. N. J. A. C. 7:1A-1.3(b), (c) and (d). The guidelines require explicitly that the draft statement shall not only be based upon a detailed study of an impacted corridor area which “encompasses all of the alternatives considered,” N. J. A. C. 7:1A-1.2(a) (emphasis supplied); there must also be treated alternatives to the proposed project including a “[description of alternative right-of-way alignments with an objective evaluation of the alternatives * * N. J. A. C. 7:1A-I.2(b) (5) (ii).

Since the Authority chose to recommend a route which was not in substantial areas included in its draft and supplementary statements as an alternative right-of-way alignment, the public hearings which were held thereon did not satisfy this requirement. N. J. A. C. 7:1A-1.3(d) and (e). If a proposed alignment constitutes, as here, a marked shift from significant portions of the routes initially considered and it does not fall within the impacted study corridor, a new statement should have been prepared in accordance with N. J. A. C. 7:1A-1.2 (a) and additional hearings undertaken. Cf. Save Our Ten Acres v. Kreger, supra; Citizens To Preserve Overton Park, Inc. v. Volpe, supra at 335 F. Supp. 873. Under those circumstances, a public hearing based upon an additional environmental impact statement would furnish the opportunity for the presentation of views by persons who might be affected by or otherwise concerned about the new proposal. D. C. Federation of Civic Associations, Inc. v. Volpe, 316 F. Supp. 754, 779 (D. D. C. 1970), rev’d and remanded 148 U. S. App. D. C. 207, 459 F. 2d 1231 (1971), cert. den. 405 U. S. 1030, 92 S. Ct. 1290, 31 L. Ed. 2d 489 (1972). By recommending a different alignment after a public hearing addressed to other routes, the Turnpike effectively shielded from public exposure areas of legitimate and reasonable concern, including the possible spoliation of the Pidgeon Swamp. Daly v. Volpe, 350 F. Supp. 252, 260 (W. D. Wash. 1972). We conclude that this failure to prepare a supplementary environmental impact statement and to conduct hearings thereon constitutes an added reason for the invalidation of final approval of the proposed extension route.

We are also of the view that the approval of the final environmental impact statement by the Commissioner and Governor cannot be regarded as conclusive of the proposition that the Authority has complied with the letter and intent of the governing statute and guidelines. This contention, made by the Authority, is a rejoinder to an argument made by South Brunswick that the determinations of the Commissioner and Governor are not immune from judicial review. We agree with appellant’s position. Cf. Committee For Nuclear Responsibility, Inc. v. Seaborg, 149 U. S. App. D. C. 380, 463 F. 2d 783, 787, injunction den. 404 U. S. 917, 92 S. Ct. 242, 30 L. Ed. 2d 191 (1971). Moreover, the failings in the environmental impact statement, which we have adumbrated, are not extenuated or overcome by the imposition, at the executive level, of ad hoc conditions designed to eliminate or mitigate these deficiencies.

The Turnpike Authority has also contended that South Brunswick cannot maintain its appeal since it failed to join the Governor as an indispensable party. Although the appeals were ostensibly taken from the recommendation of the Turnpike Authority, it is the Governor’s approval of the Yellow alignment, based on the Commissioner’s recommendation, which is the actual basis for the appeal, and the relief sought, if granted, necessarily would impugn that determination. The Governor and the Commissioner of Environmental Protection, however, were joined as defendants in the companion appeal by Monroe Township. Since the issues are identical in each appeal and a judgment in the Monroe Township appeal would bind the Governor, the issue concerning failure of joinder need not be further treated. It would, at this juncture, be pointless to dismiss the South Brunswick appeal because of the nonjoinder of the Governor since the issues in that appeal have been treated fully on the merits and the Governor, as well as the Commissioner, had the opportunity to participate in the companion appeal and are fully bound by its disposition. It is appropriate, however, that the Governor and the Commissioner be joined formally as parties, which we now direct on the court’s motion.

Eor the foregoing reasons the actions of the Governor in approving the recommendation of the Commissioner of the Department of Environmental Protection are declared invalid and set aside. Appellants shall be entitled to renew their applications for injunctive relief.


source: Caselaw Access Project

author: Meanor, J. A. D.

license: Public Domain

text:
    RITANN A. LEVIN, PLAINTIFF-RESPONDENT, v. MILTON LEVIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1974
    Decided June 20, 1974.

      Before Judges Conford, Handler and Meanor.

      Mr. Ronald A. Breslow argued the cause for appellant (Messrs. Marcus, Rosen, Breslow & Levy, attorneys).

      Mr. David L. Horuvitz argued the cause for respondent (Messrs. Horuvitz & Perlow, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

Plaintiff sues for divorce on, among other grounds, defendant’s adultery. She served interrogatories designed to elicit facts in support of that charge, specifically seeking details concerning defendant’s travel and cohabitation with the asserted paramour. Defendant refused to answer, claiming his privilege against self-incrimination. The trial court ordered that responsive answers be given, and we granted defendant leave to appeal from that order.

There can be no doubt that responsive answers to plaintiff’s interrogatories might well constitute evidence supporting defendant’s conviction on a charge of fornication. N. J. S. A. 2A:110-1; State v. Clark, 58 N. J. 72 (1971); State v. Lutz, 57 N. J. 314 (1971). Thus, defendant legitimately claimed the privilege in refusing to> answer the interrogatories and it was error to require him to answer. Evid. R. 25; N. J. S. A. 2A:84A-19; Hoffman v. United States, 341 U. S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).

Defendant, however, remains subject to the same sanctions as any other litigant who refuses to make discovery, R. 4:23, short of being held in contempt for refusal to answer. It apears to be the general, although not the universal, rule that failure to make legitimate discovery in a civil case on the ground of self-incrimination permits imposition of the usual sanctions. Mahne v. Mahne, 124 N. J. Super. 23 (Ch. Div. 1973), Certif. granted 64 N. J. 326 (1973); Duratron Corp. v. Republic Stuyvesant Corp., 95 N. J. Super. 527 (App. Div. 1967), certif. den. 50 N. J. 404 (1967); Anno-„ tation, “Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question,” 4 A. L. R. 3d 545 (1965).

As has been mentioned elsewhere, State v. Clark, supra, prosecutions for fornication are rare. Defendant may wish to revise his position now that the imposition of sanctions because of failure to answer is a certainty. Therefore, defendant will have 20 days from the date hereof to submit responsive answers to plaintiff’s interrogatories. Eailure to do so shall result in sanctions, the nature of which we leave to the trial court, but direct that at least the defense to plaintiff’s charge of adultery shall be suppressed. We add that in civil actions an adverse inference may be drawn from the claim of the privilege. Duratron Corp. v. Republic Stuyvesant Corp., supra. We do not intend to limit the trial court’s power to permit, after default, some limited participation by defendant in the contest on the adultery issue should an apt exercise of discretion dictate that course. See Perry v. Crunden, 79 N. J. Super. 285 (Cty. Ct. 1963), and Fox v. Fox, 76 N. J. Super. 600 (Ch. Div. 1962).

Reversed.


text:
    STANLEY WICKS, PLAINTIFF-RESPONDENT, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-APPELLANT. HERBERT HUBER, PLAINTIFF-RESPONDENT, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May G, 1974
    Decided June 28, 1974.

      Before Judges Conford, Handler and Meanor.

      Messrs. Milton, Keane & Brady, attorneys for appellant (Mr. Charles J. Milton on the brief).

      Mr. Francis Sorin, attorney for respondent, Stanley Wicks.

      Mr. Harold J. Ruvoldt, Jr., attorney for respondent, Huber.
   The opinion of the court was delivered by

Meanor, J. A. D.

In these actions brought under the Federal Employers’ Liability Act, 45 U. S. C. A. § 51 et seq., there were judgments for plaintiffs. Prejudgment interest was assessed against defendant pursuant to R. 4:42 — 11(b). This appeal challenges the application of that rule to an E.E.L.A. action.

R. 4:42-11(b), whose validity was sustained in Busick v. Levine, 63 N. J. 351 (1973), app. dism. 414 U. S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973), requires the assessment of prejudgment interest in all tort actions at the rate of 6% a year “from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later.” The rule is mandatory; no discretion is involved in its application. Ford v. Garvin, 127 N. J. Super. 391 (App. Div. 1974).

We may start with the elementary proposition that actions falling within the ambit of the F.E.L.A. are governed exclusively by federal law as to both liability and damages. South Buffalo R. Co. v. Ahern, 344 U. S. 367, 371-372, 73 S. Ct. 340, 97 L. Ed. 395 (1953); Anderson v. Burlington Northern, Inc., 469 F. 2d 288 (10 Cir. 1972). Federal law makes provision only for interest on a judgment, 28 U. S. C. A. § 1961, and it has been held consistently that prejudgment interest may not be awarded in an F.E.L.A. action. See, e. g., Murmann v. N. Y., N. H. & H. R. Co., 258 N. Y. 447, 180 N. E. 114 (Ct. App. 1932); Chicago, M., St. P. & P. R. Co. v. Busby, 41 F. 2d 617, 619 (9 Cir. 1930); Murphy v. Lehigh Valley R. Co., 63 F. Supp. 928 (E. D. N. Y. 1945), mod. 158 F. 2d 481 (2 Cir. 1946); Kozar v. Chesapeake & Ohio R. Co., 449 F. 2d 1238, 1244 (6 Cir. 1971); Louisiana & Arkansas R. Co. v. Pratt, 142 F. 2d 847 (5 Cir. 1944). Therefore, it was error to assess prejudgment interest under R. 4:42-11(b) on these F.E.L.A. awards.

Plaintiffs seek dismissal of the appeal on the ground that it was not timely brought. The verdicts were returned March 14, 1973. Immediately thereafter counsel and court became occupied in calculating the exact amount of the judgments to be entered because of the jury’s finding of 5% contributory negligence on the part of one plaintiff and 2% on the other. Then, the court directed the entry of judgment with interest and -costs. Obviously, this was a reference to interest on the judgments. Prejudgment interest under R. 4:42-11(b) was not mentioned.

The following day, March 15, 1973, the clerk of the court in which the cases were tried forwarded a certificate for the-entry of judgment to the Superior Court clerk in Trenton. The certificate recited that judgment was to be entered in favor of plaintiff Wicks in the amount of $33,250 “W/Interest pursuant to Rule 4:42-11,” with a like recitation following notation that judgment was to be entered in favor of plaintiff Huber for $24,500. Judgment was entered in accordance with this certificate on March 20, 1973. These judgments did not include an allowance for prejudgment interest. They simply recited debts in the principal amounts with a notation that their entry was with interest and costs.

On May 1, 1973 defendant filed a motion returnable May 17 to amend the judgment to eliminate the allowance of prejudgment interest. This motion was denied by order dated May 21, 1973 and an appeal from that order was taken June 28, 1973.

It is the position of plaintiffs that since the appeal was taken more than 45 days following the entry of judgment, it was out of time. R. 2:4—1 (a).

Defendant, however, is not appealing from the judgment, but from the May 21, 1973 order denying its motion under B. 4:49-l to amend the judgment by excising therefrom the allowance of prejudgment interest. Plaintiffs contend that this motion was not timely since it was not made within ten days of the entry of judgment as required by R. 4:49-2:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion to alter or amend a judgment shall be served not later than 10 days after entry of the judgment.

R. 1:13-1 provides :

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal. [Emphasis added]

It is apparent on this record that to include prejudgnient interest in these cases did not result from a judicial decision, hut from that of the clerk. Nowhere in the record is there evidence of any judicial ruling or order regarding prejudgment interest. Since the error in assessing prejudgment interest was not judicial hut clerical, a motion to correct such error may be made at any time. R. 4:49 — 2; R. 1:13-1. The appeal of June 28, 1973 from the denial of the motion to amend the judgment by correcting the clerical error in including prejudgment interest was well within time.

B. 4:42-ll(b) states that “the court shall, in tort actions, including product liability actions, include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date (3 months after the date of the tort, whichever is later.” The rule mandates judicial, not clerical action and its application is not to be left to the lay judgment of court clerks. It is essential that the applicability of the rule and the amount of prejudgment interest he the result of judicial ruling. If that ruling cannot he made immediately upon return of a verdict to which the rule applies, prompt arrangements should be made for resolution of any disputes upon the topic. When the amount of prejudgment interest is determined, judgment should be entered in an amount reflecting the sum of the verdict and the prejudgment interest.

The judgments below are modified to eliminate therefrom the allowance of prejudgment interest.


author: Lynch, J. A. D.

text:
    ANNA M. DOERR, ADMINISTRATRIX AD PROSEQUENDUM OF STEPHEN G. DOERR, DECEASED, CLAIMANT-APPELLANT, v. STATE OF NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Submitted May 20, 1974
    Decided July 2, 1974.

      Before Judges Collester, Lynch and Michels.

      Messrs. Supnick and Mitnick, attorneys for appellant (Mr. Charles A. Cohen on the brief).

      Mr. William F. Hyland, Attorney General, attorney for respondent (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Robert C. Leventhal, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an action pursuant to the compensation provisions of the Military and Veterans Law (N. J. S. A. 38A:13-1 et seq.). It is brought on behalf of the widow and daughter of Sergeant Stephen G. Doerr, a member of the New Jersey National Guard, who died as a result of an explosion of one or more dud rounds of ammunition at Camp Pickett, Virginia, during Doerr’s two week stint in the National Guard service. The claim filed alleged that decedent suffered his death “in line of duty” and therefore compensation was payable to his dependents as provided in the statute.

The pertinent statute, N. J. S. A. 38A:13-1, provides that injury or death is compensable if it was incurred “in the performance of duty ordered by competent authority, and such injury, disease or disability is determined to be in line of duty * * *.” It further provides:

As used in this chapter “in line of duty” means that the injury, disease, disability or death has been sustained in. the discharge of duty and is not due to any voluntary act or traceable to willful neglect, fault or Ms own vicious habits.

Following the statutory procedure (N. J. S. A. 38A:13-4), a board of five officers was appointed to inquire into the merits of the claim. Following a hearing the board reported its findings and conclusions by a divided vote of 3 to 2, the majority concluding that, the death did not arise “out of and in the course of employment.” The claim was therefore rejected. The minority, concluding that the accident occurred “in the course of employment, and was not due to willful neglect,” would have allowed the claim. Pursuant to the statute (N. J. S. A. 38A:13-4), the chief of staff reviewed the respective findings and approved the majority report.

On Saturday, August 19, 1972, while at Camp Pickett, Sergeant Doerr in the company of Privates First Class Kuhn, Havrilchak and Hughes, went to the firing range area, intending to pick up parachutes from artillery illumination rounds. Because the range was active, no attempt was made to pick up parachutes and the party returned to the motor pool to which they were attached.

On Sunday, August 20, 1972, Sergeant Doerr and Privates First Class Kuhn and Havrilchak returned to the range area, hut Private First Class Hughes did not join them. While they were in the range area, there was an explosion of one or more dud rounds (3.5" rockets, 40 mm. grenades, or possibly rifle grenades), resulting in the deaths of Doerr, Kuhn and Havrilchak.

The majority concluded that decedent was in the firing range to collect souvenirs; that to do so

* * * could not be considered as reasonably incident to employment as a motor sergeant in the New Jersey Army National Guard. Further, that the impact area was not a place that Sergeant Doerr might reasonably be expected to be on a Sunday during the Annual Training of his unit. It was believed that Sergeant Doerr at the time of his death was not engaged in a work-connected activity within the reasonable contemplation of his employer. Testimony shows that such an activity was not authorized by his commanders. These members could not accept the premise that doing what he was doing or being where he was at the time of his death was a very natural activity for travelers or tourists away from home.

The majority also concluded that Doerr’s death was traceable to willful neglect because:

a. Sergeant Doerr was present in the impact area of a firing range, knowing it was an impact area, was the leader in the activity, and in so doing exhibited a reckless disregard for his own personal safety as well as the safety of others;
1). Evidence shows that Sergeant Doerr was engaged in collecting some type of ammunition souvenirs while in the impact area despite the inherent dangers of such activity. Whether he had specific knowledge of the type of ammunition involved could not be determined; however, as a soldier of about nine years, including membership on a rifle team, it must be presumed that he had a general knowledge of the dangerous qualities of ammunition to be found in an impact area. His act of handling rounds found in the impact area, or permitting these actions by subordinates, indicates reckless conduct which endangered his safety as well as the safety of others.

The minority held that since the National Guard had brought Sergeant Doerr to an area away from home, the State should be responsible for the death which occurred while he was on the trip, even though, at the particular moment, he was- doing something not strictly in the line of duty. The minority cited Cavalcante v. Lockheed Electronics Co., 85 N. J. Super. 320 (Cty. Ct. 1964), aff’d 90 N. J. Super. 243 (App. Div. 1966), in the analogous area of workmen’s compensation. The minority also concluded that there was no evidence of reckless or wanton disregard of the consequences of entering the target area and therefore he was not guilty of such “willful neglect” as would preclude compensation under N. J. S. A. 38A:13—1.

While it is true that Sergeant Doerr was on free time on Sunday, August 20, 1972, the training for the first week having ended after the noon meal on Saturday, August 19, we nevertheless feel that his death occurred in “line of duty” under the liberal approach which should be adopted here, as it is under the Workmen’s Compensation Act, including public employees, volunteer firemen, first-aid and rescue squad workers. N. J. S. A. 34:15-43; Cuna v. Avenel Bd. of Fire Com’rs, 42 N. J. 292 (1964). There it was held that the phrase “line of duty,” as it applies to compensation for a volunteer fireman, is to be liberally construed and thus compensation was awarded to such a fireman for injuries suffered while playing softball on his fire company’s team. We consider that the service of a national guardsman requiring two weeks away from home, as in this instance, is of such dedication to public duty as to warrant liberal interpretation of the statute here involved.

Under the Workmen’s Compensation Act, an accident arises out of the employment if it results from reasons reasonably incidental to employment. An accident arises in the course of employment if it occurs “while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.” Bryant, adm'x v. Fissell, 84 N. J. L. 72, 77 (Sup. Ct. 1913). See also, Bergman v. Parnes Brothers, Inc., 58 N. J. 559 (1971).

In Cavalcante v. Lockheed Electronics Co., supra, petitioner was employed by respondent as an electronics technician in Plainfield. He volunteered lor a special project of a temporary nature in New London, Connecticut. He received his normal salary and all expenses from respondent. After working one day he sought relaxation, ate, drank and went to a dance hall. On the way back to the motel petitioner’s car went off the road and he was killed. The Workmen’s Compensation Division, County Court and Appellate Division all found that the accident arose out of and in the course of decedent’s employment. It was held that the standard by which to judge whether the activity of the workman at the time of the accident was in the course of his employment was reasonableness, i. e., whether it was reasonably related to the employment. In the case of an employee traveling on business what is “reasonable” is given a very liberal construction (85 N. J. Super. at 325). The court held that it was reasonable for Cavalcante and his associates to seek diversion and relaxation in town, and rejected the employer’s contention that immediately upon 'having their dinner and returning to their motel any mishap that might befall them thereafter at another place was not work connected.

In Foerster v. Keansburg Fire Dept., 84 N. J. Super. 324 (App. Div. 1964), a volunteer fireman died of a heart attack after participating in the preparation of the festivities of special Memorial Day exercises conducted by the fire department. The court held that he died in the lino of duty.

While Sergeant Doerr had no scheduled military duties on the Sunday of his death, he nevertheless was in a “duty status and pay status at the time of accident,” as the board found. He and other members of his unit had been urged to use the weekend to engage or participate in group activities for which facilities were available, or to- take trips to not too distant places. We do not consider that in seeking souvenirs, petitioner and his fellow-guardsmen deviated too far from that suggestion. We agree with the conclusion of the minority of the board that an employer who brings employees to an area far from their home has a responsibility which may go beyond the responsibility which the employer would have if the employees were stationed at the regular place of employment where they would have access to usual and familiar type of recreation during their off-duty hours. We conclude that, in the light of the liberal construction mandated,- decedent suffered his death from a risk reasonably incidental to his employment and while he was doing what a man so employed may reasonably do within the time during which he is- employed and at a place where he may reasonably be during that time. Bergman v. Parnes Brothers, Inc., supra; Bryant, adm’x v. Fissell, supra.

One distinction between the Workmen’s Compensation Act and N. J. S. A. 38A :13-1 et seq. is that the latter imposes a defense of “willful neglect” against petitioner while the former does not. We disagree with the majority report of the board in finding willful neglect on decedent’s part in this instance. As the board admitted, there was no direct proof that decedent knew of the warning concerning the range area which was said to have been given. Nor is there any proof as to the exact nature of that warning, whether it was merely to “be careful” or of a different degree. We consider “willful neglect” to be different than what would amount to contributory negligence in a negligence ease. While it might be said that there was sufficient proof to find decedent guilty of contributory negligence, that concept is irrelevant and is no defense to this action. Certainly it cannot be said that he intended that the unfortunate accident should have occurred nor is there any proof that he was aware of the possibility of explosion. Again, in the light of the liberal construction which, was required, we conclude that decedent was not guilty of such willful neglect as would deny relief under this statute.

The order of the chief of staff denying the within claim is reversed. The matter is remanded to that officer for computation of the benefits allowable. We do not retain jurisdiction.

      This phrase, relevant in workmen’s compensation cases, is not the statutory language here. Under N. J. S. A. 38A:13-1 the death is compensable if incurred “in line of duty.” However, we perceive no material distinction in the different language. Cf. Cuna v. Avenel Bd. of Fire Com’rs, 42 N. J. 292, 298-303 (1964), holding that, as to compensation for volunteer firemen “the expression' ‘in line of duty’ is no less comprehensive than ‘out of and in the course of employment.’ ” (at 303).


author: Bischoff, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STEVEN GREEN AND JOSEPH GUIDA, DEFENDANTS-APPELLANTS.
    Superior Court oí New Jersey Appellate Division
    Argued June 11, 1974
    Decided July 2, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. James Logan, Jr., attorney for appellant Green (counsel did not appear and argue).

      Mr. Steven H. Gifis argued the cause for appellant Guida.

      Mr. George H. Henningsen, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Bischoff, J. A. D.

In a two-count indictment defendants Green and Guida were charged with unlawful possession of a controlled dangerous substance (marijuana) in excess of 25 grams, contrary to N. J. S. A. 24:21-20 (a) (3), and unlawful possession of a controlled dangerous substance (methamphetamine and POP), in violation of N. J. S. A. 24:21-20(a)(1). They were convicted by a jury on both counts. Their motion for a new trial was denied. Both were sentenced and filed a joint notice of appeal.

The State’s proofs indicate that on December 15, 1971 two state troopers observed a Dodge van being operated on the New Jersey Turnpike with its windshield obstructed. They stopped the van and ascertained it was owned by Green and operated by Guida. When the owner had difficulty locating his registration papers, one trooper directed his flashlight into the interior of the van to lend assistance and observed a knife strapped to the seat on the driver’s side and cigarette papers on top of the engine compartment. Observation of the eyes and demeanor of the occupants of the car led the troopers to conclude the occupants were under the influence of narcotics. They were placed under arrest for possession of the knife and for being under the influence of narcotics. A search of the vehicle disclosed the presence of a quantity of narcotics including pills and marijuana.

Green first admitted the pills belonged to him and that he had purchased them “cheap.” He later denied that story. Guida said he was merely a hitchhiker and while he knew the narcotics were in the vehicle they did not belong to him. Both defendants were represented at the time of trial by the same counsel, who undertook this joint appeal and filed a joint brief for them. Thereafter separate counsel was substituted for Guida and a supplemental brief filed on his behalf only. Multiple issues are raised by the two briefs.

I

The chief argument made by Guida in his supplemental brief is the contention that he was denied due process of law and a fair trial because he and- his codefendant were represented by the same attorney at trial. Such dual representation, it is argued, was a denial of his right to effective assistance of counsel because his attorney necessarily had a conflict of interest. Although Guida never requested separate counsel, he now claims he was prejudiced by the joint representation at trial.

It is clear that both the State and Federal Constitutions give an accused the right to have the untrammelled and unimpaired assistance of counsel in his defense. State v. Whitlow, 45 N. J. 3, 27 (1965); Gov’t. of Virgin Islands v. John, 447 F. 2d 69, 74 (3 Cir. 1971). Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), requires a defendant should have nothing less than the undivided loyalty of his counsel. In the case of Gov’t. of Virgin Islands v. Hernandez, 476 F. 2d 791 (3 Cir. 1973), the court said:

The Supreme Court has held that the sixth amendment right to fair and effective assistance of counsel can be abridged when several defendants are represented by one counsel. Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Although recognizing that this constitutional right could be waived, the Court said any waiver must be made knowingly and intelligently * * *’. [at 793]

Every reasonable presumption should be indulged against a waiver. Id. at 793.

While the State recognizes these decisions and the right of defendant to counsel, it contends that not every case of dual representation is per se constitutionally fatal to a trial in which either or both defendants are convicted and argues that the general and better rule requires a specific instance of prejudice or a real conflict of interest to exist before it can be said that effective assistance has been denied, citing Glasser v. United States, 315 U. S. 60, 72-76, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Lovano, 420 F. 2d 769, 774 (2 Cir. 1970), cert. den. 397 U. S. 1071, 90 S. Ct. 1515, 25 L. Ed. 2d 694 (1970); Fryar v. United States, 404 F. 2d 1071, 1073 (10 Cir. 1968), cert. den 395 U. S. 964, 89 S. Ct. 2109, 23 L. Ed. 2d 751 (1969); United States ex rel. Smith v. New Jersey, 341 F. Supp. 268, 271 (D. N. J. 1972).

Defendant Guida, on the other hand, contends that the right to effective assistance of counsel is denied when dual representation results in a showing of a possible conflict of interest or prejudice, however remote. Walker v. United States, 422 F. 2d 374, 375 (3 Cir. 1970), cert. den. 399 U. S. 915, 90 S. Ct. 2219, 26 L. Ed. 2d 573 (1970); United States ex rel. Smith v. New Jersey, supra.

The problem has been articulated by the Circuit Court of Appeals for the Third Circuit in the case of United States ex rel. Hart v. Davenport, 478 F. 2d 203 (1973), as follows:

The legal standard to be applied to a claim of prejudice from joint representation is clear enough. The right to counsel guaranteed by the sixth and fourteenth amendments contemplates the service of an attorney devoted solely to the interests of his client. The right to such untrammelled and unimpaired assistance applies both prior to trial in considering how to plead [citation omitted] and during trial [citation omitted]. Recognizing that the right to such assistance of counsel may be waived [citation omitted], we have refused to find any such waiver from a silent record. [Citations omitted]. We have not yet held that the coincidence of joint representation and a silent record is alone enough to require relief [citation omitted]. On the other hand, we have rejected the approach that before relief will be considered the defendant must show some specific instance of prejudice. [Citations omitted]. Instead, we have held that upon a showing of a possible conflict of interest or prejudice, however remote, we will regard joint representation as constitutionally defective. [at 209-210]

In one of the few instances where our courts have spoken on this problem of joint representation, Judge (now Justice) Sullivan enunciated the guiding principles as follows:

The right to adequate and effective representation by counsel is so fundamental that invocation of it cannot be made to depend on a showing of prejudice [citations omitted]. Moreover, where, as here, a substantial conflict of interest is present, the matter of adequate and effective representation falls into a shadowy area which is almost impossible to probe. * * * [State v. Ebinger, 97 N. J. Super. 23, 27 (App. Div. 1967) ]

Guida points to two specific instances of a conflict of interest which would conceivably have been alleviated through a stratagem adopted by separate counsel. Green was the owner of the vehicle in which Guida, a hitchhiker, was an occupant. It was to Guida’s interest to emphasize the fact of ownership and control of the car, and in Green’s interest to ignore it. Moreover, there was the alleged oral statement of Green that he had purchased the drugs cheaply. It would have been beneficial to Guida at the time of trial if Green had been closely cross-examined concerning this statement, but dual representation precluded such a course.

This type of case uniquely requires undivided counsel. Proof of guilt depends on establishing that the narcotics were within the control of either one or both of the defendants. In the case of Gov’t of Virgin Islands v. Hernandez, supra, defendants (husband and wife) were convicted for possession of heroin with intent to manufacture or distribute it. The case against both defendants consisted of a display of a number of narcotics items seized at their home and testimony by an agent that he saw the wife pouring some white powder into a sink. None of the seized evidence pointed specifically at the husband. On appeal defendants contended they were denied effective assistance of counsel because they were represented by the same attorney. The court, in reversing and granting a new trial, noted that defendants had never been apprised by the trial court of the dangers of joint representation, nor was counsel asked about a possible conflict of interest in such representation. Accordingly, the court recommended that on remand the trial' court warn each defendant of the potential dangers of joint representation and pointed out that such advice is particularly important in a case “when two persons are jointly charged with possession of narcotics when the only proof is that the narcotics were found in the zone of control of both persons.” Id. 476 F. 2d at 794.

At oral argument new counsel for Guida represented that Guida would testify he had never been advised of the pitfalls of dual representation and had never knowingly consented to it; further, he had left the details of engaging counsel in the hands of Green. Counsel further stated Guida contends he was, in fact, advised that the case against him was extremely weak and he need have no concern for the outcome of the trial.

It is abundantly clear to us on this record that Guida was prejudiced by the common representation that occurred and for that reason the matter must be remanded for a retrial.

Whenever an instance of dual representation appears, it would be appropriate for the court to conduct a voir dire at the earliest convenient time to determine whether or not all defendants thus represented have been fully informed of the potential hazards of such a course. If they have been fully informed and still elect to proceed in that fashion, their willingness to do so should be made a matter of record. If this procedure is followed it .will be unnecessary for an appellate court to decide on a silent record whether or not a defendant has been denied his constitutional right to effective assistance of counsel by joint representation.

In light of our conclusion that the case must be remanded for a retrial, it becomes unnecessary to discuss many of the alleged trial errors. However, several issues do require comment.

II

At the start of the trial defendant made a timely motion to sequester the witnesses as follows:

MR. LOGAN: Your Honor, if there are any other witnesses in íhis ease, I would like to have them sequestered.
MR. SULLIVAN: There are several other witnesses here. The chemist is here.
THE COURT: I don't believe there is any need to sequester the chemist.
MR. LOGAN: I request that he be sequestered, your Honor.
THE COURT: Denied.
MR. SULLIVAN: May we approach the Bench, your Honor.
THE COURT: You may.
[Discussion at side bar off the record.]

Defendants contend the denial of their request to sequester the chemist was error. While sequestration is discretionary, the exercise of a sound discretion ordinarily requires that a motion for sequestration be granted. In order to uphold the denial of a timely motion for sequestration the record should disclose a sound basis for such a denial and, “Where there is an arbitrary denial of a timely motion, it is not necessary for the defendant to show that he has been prejudiced thereby.” State v. DiModica, 40 N. J. 404, 413 (1963). Here, a timely motion to sequester was made. No sound reason for the denial of the application appears on the record, and it follows that error was committed. State v. Tillman, 122 N. J. Super. 137 (App. Div.), certif. den. 62 N. J. 428 (1973); State in the Interest of W. O., 100 N. J. Super. 358, 363 (App. Div. 1968). It may be that sound reason appeared during the “discussion at side bar off the record” but it is not available for our review.

Ill

This points up a potential hazard in conducting side bar discussions off the record. The transcript of this trial contains a record of 18 such conferences of unknown length. While we recognize the absolute necessity for side bar conferences if trials are to proceed without undue delay and to avoid the needless shuttling of juries between the courtroom and the jury room, great care must be exercised by the trial judge to assure preservation of a verbatim recording of the proceedings required by R. 1:2-2 and R. 2:5-3 (a). The complete transcript is of crucial importance for a meaningful review to both the appellate court and to new counsel on appeal. Hardy v. United States, 375 U. S. 277, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964); United States v. Garcia-Bonifascio, 443 F. 2d 914 (5 Cir. 1971); United States v. Upshaw, 448 F. 2d 1218 (5 Cir. 1971), cert. den. 405 U. S. 934, 92 S. Ct. 970, 30 L. Ed. 2d 810 (1972). All side bar conferences which pertain in any way to the trial or the conduct thereof must be “on the record" and a verbatim recording made. In the event a side bar conference occurs which does not in any way involve the trial then underway, a verbatim recording would be unnecessary. However, to dispel all doubts concerning the silent record, which only notes a “side bar conference off the record," a statement should be made on the record indicating that the conference concerned matters other than the pending litigation.

IY

Defendant further contends it was error for the prosecutor to display on counsel table various items, including bottles filled with pills, marijuana, a mushroom and a hunting knife before any testimony was produced concerning them and before they were offered into evidence.

We agree. Timely objection was made by defendants’ counsel to exhibition of these items and should have been granted. State v. Garton, 3 N. J. Misc. 681 (Sup. Ct.), rev’d on other grounds, 102 N. J. L. 318 (E. & A. 1925); People v. Brophy, 122 Cal. App. 2d 638, 265 P. 2d 593, 46 A. L. R. 2d 1410 (D. Ct. App. 1954).

V

Finally, a word about the sentence. Defendants were found guilty of both counts of the indictment. However, only a single sentence was imposed by the trial judge, who treated the indictment as being in one count only. This was improper. The trial court should specify the sentence for each defendant for each offense charged in the indictment of which he is found guilty. There being a finding of guilty on each of two counts, there should be a separate sentence imposed on each count. State v. Cianci, 18 N. J. 191 (1955), cert. den. 353 U. S. 940, 77 S. Ct. 819, 1 L. Ed. 2d 763 (1957); State v. Rullis, 79 N. J. Super. 221 (App. Div. 1963).

Eeversed and remanded for a new trial.

      See Code of Professional Responsibility, DR 5-105(0), for the nature of the obligations imposed on the attorney electing to represent multiple clients and see also Standard 3.5 of the ABA Project on Standards for Criminal Justice, “Standards Relating to the Defense Function” (Approved Draft 1971).

      Standard 5.6(c) of the ABA Project on Standards for Criminal Justice, “Standards Relating to the Prosecution Function” (Approved Draft 1971) provides that, “It is unprofessional conduct for a prosecutor to permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration by the judge or jury until such time as a good faith tender is made.”
      “The premature display of a tangible article in the courtroom may be unduly inflammatory even though it is later admitted.” Id. at 122.


author: Per Curiam.

text:
    FREDERICK D. KING AND FREDERICK F. RICHARDSON, EXECUTORS OF THE ESTATE OF ROBERT S. HERBERT, JR., DECEASED, PLAINTIFFS-RESPONDENTS, v. RICHARD SMITH, ROBERT SMITH AND STILSON H. SMITH, DEFENDANTS-APPELLANTS, AND ESTATE OF JOAN S. BALLER, DECEASED, CAROLE BALLER AND WARREN O’CONNELL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted May 14, 1974
    Decided July 3, 1974.
    Before Judges Carton, Lora and Seidman.

      Mr. Bernard A. Kuttner, attorney for defendants-appellants.

      Messrs. Mason, Griffin & Pierson, attorneys for plaintiffs-respondents.

      Mr. Samuel C. Inglese, attorney for defendants-respondents Estate of Joan S. Baller, deceased, and Carole Baller.

      Messrs. McCarthy, Bacsik and Hicks, attorneys for defendant-respondent Warren O’Connell (Messrs. Gordon C. Strauss and Christopher Baker, on the brief).
   Per Curiam.

This case was consolidated on appeal with two other related cases involving the will of Robert S. Herbert, Jr., deceased. The reason for such consolidation was that the issues involved in the related cases would have been rendered moot if this court should decide that the bequests to the attesting witnesses were invalid.

While this matter was pending on appeal so much thereof as applied to Joan S. Bailer was settled. Consequently, there is no need for us to give further consideration to this phase of the appeal.

As to the remaining appeal involving Warren O’Connell, we conclude that the trial court properly held that any disqualification that may have existed because he was an attesting witness to the will which provided a stock option in his favor was removed as the result of the later execution of the codicils to which he was not a witness, and we affirm essentially for the reasons expressed in the opinion of Judge Eurman reported at 123 N. J. Super. 179 (Ch. Div. 1973). This appeal is therefore deconsolidated from the related cases for the purpose of this opinion.


author: Schwartz, L., J. C. C.,

text:
    HILL HOMEOWNERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, BRUNO BARBARESE AND VELIA BARBARESE, HIS WIFE, AND JOSEPH WEINSTOCK AND HILDA WEINSTOCK, HIS WIFE, AND MARTIN L. HELFGOTT AND ESTHER HELFGOTT, HIS WIFE, PLAINTIFFS, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, ELIAS DRAZIN AS BUILDING INSPECTOR OF THE CITY OF PASSAIC, MAYOR AND COUNCIL OF THE CITY OF PASSAIC AND HARRY STANFORD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 3, 1974.

      Mr. Marvin A. Stern for plaintiffs.

      Mr. Otto F. Blazsek for defendant Zoning Board of Adjustment of the City of Passaic.

      Mr. Leonard Bitterman for defendants Elias Drazin, as Building Inspector, and Mayor and Council of the City of Passaic.

      Mr. Harry Kampelman (Mr. Steven E. Pollan, on the brief), for defendant Harry Stanford.
   Schwartz, L., J. C. C.,

Temporarily Assigned. Plaintiffs challenge the approval by the Board of Adjustment of the City of Passaic of an application under the provisions of N. J. S. A. 40:55-39(c) for variances permitting the construction of an apartment house on premises at the corner of Aycrigg Avenue and High Street in accordance with building plans which failed to conform to the zoning ordmance in the area of side yard, parking spaces and floor area ratio regulations.

The building plans provided for 252 apartments and various facilities to accommodate the tenants on a plot of land containing 85,750 square feet. The testimony proferred by the applicant related to elevator service, preservation of greenery, water supply, auxiliary power system, garbage collection and ventilation and, in fact, these facilities became the subject of various conditions imposed by the board.

However, no testimony was offered that an apartment building of smaller dimensions which could accommodate side yards, parking spaces and floor area ratio in conformance with the zoning ordinance, could not be readily constructed on the site. Nor could the evidence support a finding that other permitted structures in this zone were not reasonably feasible on a tract of this size. Dissenting opinion of Judge Kolovsky, Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., 127 N. J. Super. 60 (App. Div. 1973), aff'd o. b. 64 N.J. 334 (1974).

If the argument is that a building of smaller dimensions or fewer apartments would not be as profitable, it is fundamental that mere economic hardship is not a sufficient special circumstance upon which to ground a variance. Wilson v. Mountainside, 42 N. J. 426, 451 (1964); Bern v. Fair Lawn, 65 N. J. Super. 435, 450 (App. Div. 1961).

There is no showing in the record of any exceptional narrowness, shallowness or shape of the plot, exceptional topographic condition of the land or any other physical condition thereof which would cause undue hardship or peculiar or practical difficulties to the applicant if the provisions of the ordinance were enforced. There is nothing in this property which is unique to it, differentiating it physically from other property in the zone. Isko v. Livingston Tp. Planning Bd., 51 N. J. 162, 174 (1968).

The plot is not undersized under the terms of the ordinance. The applicant seeks to shoehorn an oversized structure into an area not large enough to accommodate the parking and side yard requirements. The personal hardship does not constitute sufficient ground for the granting of a variance under subsection (c).

The pretrial order refers to legal issues arising from an area of testimony which has not been heretofore reviewed in any reported decision in this State and which is ripe for the court’s consideration in the light of the widespread practice of admitting similar evidence which prevails in many municipalities.

The president of the planning board was called as a witness at the instance of the board of adjustment. He was not qualified as a planning expert but recited the minutes of the planning board meeting at which plaintiff had applied for and was granted site plan approval of this project, in accordance with its authority under the local zoning ordinance.

The planning board record, in addition, contained the recommendation that a variance be approved by the adjustment board for the proposal which was deficient in the area of the floor area ratio, side yard and parking spaces requirements of the ordinance.

The report and recommendation of the planning board presented in a variance hearing gives rise to the issues of whether the application for site plan approval should precede or succeed the variance hearing; whether the impartiality of the q-iiím-judicial board of adjustment is tainted when influenced by a planning board decision and recommendation, and whether site plan applications are statutorily cognate to functions of the board of adjustment rather than the planning board.

I

Unless the premises and the structure which are the subjects of an application for site plan approval conform in all respects to the zoning ordinance, or unless the situs and the proposed construction decisionally conform by grant of the adjustment board (or governing body under a (d) variance), the consideration of site plan approval is premature.

A site plan reviewing board (the planning board in Passaic) cannot require an applicant to place any structure, whether it is a principal structure or accessory building, or whether it is parking or driveway pavement or barrier, etc., in such a position that it violates the provisions of a zoning ordinance or the terms of a variance.

Until the board of adjustment expresses in its resolution the nature of the adjustment or deviation from the zoning ordinance permitted by it, the site plan reviewing board cannot determine if its requirements will impinge upon the permission vested or conditions imposed by the adjustment board by virtue of its superior statutory authority. Further, any recommendation it makes to the board of adjustment is an impropriety to which we will later advert.

Site p’an applications should not be entertained until after the zoning authorities have resolved applications for variance when they are required.

II

Since the adjustment hoard had elicited the report and recommendation of the planning board, we cannot assume it was uninfluenced by the latter’s advice and advocacy. We hold that the action of the planning board, in recommending approval of the variance application, constituted an unlawful intrusion, though solicited, upon the <7i/<m-jud'cial responsibility borne by the board of adjustment when it sat as an administrative agency to determine if the applicant’s situation warranted zoning adjustment by variance.

Wln'le strict rules of judicial procedure are not imposed and tlio adjustment hoard is not hound by strict rules of evidence, its judgment must be substantially grounded in competent evidence (Stolz v. Ellenstein, 7 N. J. 291, 295 (1951)), arising from examination and cross-examination of witnesses, unless waived. Experts may testify, but mere reports, recommendations, letters, affidavits or petitions cannot be made the basis of the board’s judgment. The board must engage in the judicial excursion of deriving ultimate facts from the basic factual determinations it has reached from the competent evidence adduced. Tomko v. Vissers, 21 N. J. 226 (1956).

In West Milford Tp. Planning Bd. v. Tp. Council, 123 N. J. Super. 135, 144 (Law Div. 1973), the court marshalled decisions analogizing the authority of courts of general jurisdiction to administrative tribunals with quasi-judicial powers and pointed out that their function partakes of the judicial even though their exercise is styled “quasi-judicial”; that the statutory scheme was to keep the boards of adjustment independent of other municipal agencies; that the board of adjustment was a statutory creation for the effectuation of legislative policy, rather than being an agent of the local governing body; that the municipal agencies sitting as quasi-judicial boards are to apply our Buies of Court in considering the timeliness of appeals.

The court, to further clarify the character of this board, also quoted from 4 Cooley, Taxation (4 ed. 1929), § 1621 at 3239, which referred to tax assessors but which applies to this case with equal force:

They who are intrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of the courage. s.- * * ^n(j thig principle of protection is not limited in its application to the judges of courts, but extends to all officers who have duties to perform which in their nature are judicial, and which are to be performed according to the dictates of their judgment.

It may not be inappropriate to further catalogue some of the more significant protocols and the status of boards of adjustment in the legislative scheme:

Not only must the board be judicious in its judgments but, as the court stated in State v. Dowling, 5 N. J. Misc. 180, 135 A. 798 (1927), it must act judicially.

—If the proceedings before the board lack recognized elements of a judicial inquiry and impartiality, they will be set aside. Hendey v. Ackerman, 103 N. J. L. 305 (Sup. Ct. 1927); Siegel v. Newark Bd. of Adjust., 137 N. J. L. 423 (Sup. Ct. 1948).

—As in judicial proceedings, res judicata is applicable to actions heard by the board, if circumstances have not changed. Russell v. Tenafly Bd. of Adjust., 31 N. J. 58 (1959).

—A quasi-judicial procedure has such judicial attributes that an absolute privilege extends to communications made by an objector as it does when made before a court, when it is pertinent to the questions legitimately to be decided. J. D. Const. Corp. v. Isaacs, 95 N. J. Super. 122 (App. Div. 1967).

—While the hearing before the board is not a formal trial, it partakes of the character of a quasi-judicial proceeding which must be governed by a spirit of impartiality uninfluenced by considerations dehors the record. Kramer v. Sea Girt Bd. of Adjust., 45 N. J. 268, 284 (1965).

—Such board shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach its conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action. Penn. R. Co. v. N. J. State Aviation Comm’n, 2 N. J. 64, 70 (1949).

—Further, “any zoning official who permits himself to be swayed by favor or prejudice, who yields to influence, political or otherwise, who arrives at a decision otherwise than in conformity to the governing rules of law and as a reasonable conclusion of the facts before him is false to the great trust imposed upon him.” (Emphasis supplied). “The Legal Background of Zoning,” by Chief Justice W. M. Maltbie, Supreme Court of Errors of Connecticut, 22 Conn. Bar J. 9 (1745).

These excerpts are mentioned for the purpose of stressing the impropriety of other municipal boards suggesting approval or disapproval of zoning applications, which may result in the gwasi-judicial board of adjustment being improperly influenced by their judgments. Not even a court may substitute its judgment for that of the zoning board, within that body’s sphere of action, in the absence of arbitrariness. Potts v. Princeton Bd. of Adjust., 133 N. J. L. 230, 238 (Sup. Ct. 1945).

In this instance the board of adjustment failed to maintain its judicial and autonomous role as the result of the solicited participation of the planning board, and its judgment was thereby prejudiced.

Ill

Authority of the planning board to determine site plan approval has not been seriously questioned by the courts at the highest level during recent years, despite the less than wholehearted acknowledgment of such planning board power by the Appellate Division in Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589 (App. Div. 1958), to which we will subsequently refer.

In the first reported challenge to the validity of an ordinance delegating applications for site plan approval to the planning board, the Supreme Court in Kozesnik v. Montgomery Tp., 24 N. J. 154, 178, 186 (1957), found this body was “singularly appropriate” for such reference, by authority of N. J. S. A. 40:55-1.13 which provides that the “governing body may by ordinance provide for the reference of any other matter or class of matters to the planning board.”

Later in 1957, Judge (now Justice) Hall, sitting as a trial judge in Newark, etc., Cream Co. v. Parsippany-Troy Hills Tp., 47 N. J. Super. 306, 332, said, “I feel it is within the letter and spirit of authority granted by N. J. S. A. 40:55-1.13” for the planning board to administer site plan approval since the argument against it “seems to have been disposed of adversely to plaintiffs argument by the recent Kozesnik decision.”

However, describing the span of “any other matter or class of matters,” while writing for the Appellate Division the next year, in Saddle River Country Day School v. Saddle River, supra, his endorsement was less sanguine:

This language is very broad, lrat we think its scope is not unlimited. The device cannot be used, willy-nilly, as a catch-all or depository for just every type of municipal problem. It must be read and interpreted in the light of the context of the whole section. i. e., the broad and general subject of planning, “the planning and physical development of the municipality.” In the only judicial appraisals thereof so far, it has been found a valid basis for delegating to the planning board the matter of approval of the details of site plans required by local zoning ordinances as a prerequisite to the issuance of building permits for certain special types of industrial uses. Kozesnik v. Montgomery Township, 24 N. J. 154, 178, 186 (1957); Newark Milk and Cream Co. v. Township of Parsippany-Troy Hills, 47 N. J. Super. 306, 332 (Law Div. 1957). [51 N. J. Super. at 603]

The Supreme Court, affirmed this judgment in 29 N. J. 468 (1959), without commenting on this serious limitation of what had been accepted as broad authority to refer applications for site plan approval to the planning board.

Whether this board is singularly the appropriate local body to determine such matters is worthy of reconsideration by the upper courts. There are compelling reasons for concluding that the board of adjustment was designed by the Legislature for this responsibility.

Originally the building inspector bad the responsibility to examine applications for building permits and site plans. Local governing bodies were concerned that the operations of such administrative officers (part-time in the vast majority of municipalities) might offend the public interest, particularly since it was not feasible to set forth in an ordinance the specific requirements upon which a building inspector could readily grant or refuse a permit.

Hence, it was determined to empower a municipal board to consider whether the details of a proposed plan squared with the legislated standards in the zoning ordinances and to specify the exact terms necessary to meet the standards.

While the planning board usually deals in matters of broad systematic municipal development (Mansfield & Swett, Inc. v. West Orange, 120 N. J. L. 145, 149 (Sup. Ct. 1938)) to secure future well-balanced land use in the community and recommends zoning legislation to the governing body, it is the board of adjustment which the Legislature designed to and which characteristically weighs the details of particular and individual uses and structures so that the operation will not offend the public interest.

Site plan review calls for individual consideration and approval of each proposed use and structure.

The chronology of the enabling zoning act vis-a-vis the planning act strongly suggests that site plan review is cognate to zoning board administration and should be delegated to this board under the specific pertinent language of N. J. S. A. 40:55-39(b), providing that the board may “hear and decide . . . requests * * * for decisions upon other special questions upon which the board is authorized by any such ordinance to pass.”

This language appeared in L. 1948, c. 305, which gave original jurisdiction to the board of adjustment in this broad “other” zoning area, in addition to special exceptions (previously authorized), and interpretations of the zoning map.

The comprehensive Municipal Planning Act, N. J. S. A. 40:55—1.1 et seq., was not adopted until 1953. In N. J. S. A. 40:55-1.13, described in Kozesnik as the source of planning board authority to review applications for individual site plan approval, the planning board was empowered to review public projects as a precondition for public expenditure therefor. While additionally the board was authorized to consider “any other matter or class of matters” referred to it by ordinance of the governing body, its powers in this respect were specifically related to “the planning and physical development of the municipality.”

An application for individual site plan approval does not appear to relate to such general community-wide considerations. It is cognate to the statutory relationship between the adjustment board functions and those of the building inspector both of which administer the zoning regulations and are responsible for particular uses being harmonious with the intent of the zoning act and zoning ordinances.

This is particularly so since the only standards by which site plan applications are judged (in Passaic and in almost every municipality) are found in the zoning ordinance, which must be consistent with the purposes of the zoning statute. The board of adjustment was designed by the Legislature to provide expert discretion and judgment consistent with the purpose of the zoning statute. Rogoff v. Tufariello, 106 N. J. Super. 303, 308 (App. Div. 1969).

In the area of expertise ascribed by the court in Kozesnih to the planning board for the purpose of administering provisions of a zoning ordinance by the procedure of site plan approval (areas previously supervised by the building inspector) it is significant that the enabling Zoning Act relies upon the expertise of the board of adjustment as an appellate board to decide the “error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning ordinance.” N. J. S. A. 40:55-39(a).

.Having this specialized skill, the adjustment board is highly qualified to “hear and decide * * * requests * * * for decisions upon other special questions * * *” consistent with zoning administration, such as applications for site plan approval, under its original jurisdiction provided in N. J. S. A. 40:55-39(b).

The need for judicial reconsideration of the subject is suggested in 2 Rathkopf The Law of Zoning and Planning (3d ed.) c. 54 at 14:

The distinction in New Jersey between the situations in which reference may be made to a planning board as in Kozesnik and in Newark Milk and Cream Co., and when reference can only be made to the board of adjustment is not too clear, particularly in light of the language of the two statutes involved and the language and facts in the opinions in these two cases.

In L. 1924, c. 146, the more comprehensive L. 1928, c. 274, and the revision in L. 1948, c. 305 (N. J. S. A. 40:55-39 (b)), the board of adjustment was given exclusive original authority over the granting of special exceptions. Saddle River Country Day School v. Saddle River, supra, aff’d 29 N. J. 468 (1949).

For the purpose of augmenting the authority of the adjustment board in areas of zoning administration which were shown by experience since 1928 to require further attention, the Legislature in 1948 inserted in the same section (b) additional exclusive original jurisdiction to hear and decide requests for interpretation of the map and “for decisions on other special questions.” Once this power was delegated, can we say that by the later Planning Act of 1953 it was intended to divest the adjustment board of this authority?

The effectuation of the legislative intent is the end to be served in the exposition of statutes. The literal import of the term “any other matter or class of matters” in the Planning Act must be given a meaning reasonably consonant with the legislative design in the area of the planning board’s responsibility over the systematic planning and physical development of the municipality. The intention to alter the essence of the power over specific zoning-related applications, already delegated to the board of adjustment, must be expressed in language admitting no reasonable doubt of its purpose. Crater v. Somerset Cty, 123 N. J. L. 407, 414 (E. & A. 1939); Singleton v. Consolidated Freightways Corp., 64 N. J. 357 (1974).

Have the courts permitted governing bodies and planning boards to “circumscribe or alter powers committed by statute to the board of adjustment”? Duffcon Concrete Products v. Cresskill, 1 N. J. 509, 515 (1949).

Judgment will be entered in favor of plaintiffs reversing the action of the board of adjustment, in the absence of proofs to meet the statutory test of “hardship,” and because of the intervening of the planning board by the testimony of its president in the gwcm’-judicial function of the board of adjustment.