Harry Grant Center Corp. v. Mayor and Council of Borough of Fort Lee
| Decision Date | 14 August 1989 |
| Citation | 235 N.J.Super. 491,563 A.2d 449 |
| Parties | HARRY GRANT CENTER CORP., a New Jersey Corporation, Plaintiff-Respondent, v. MAYOR AND COUNCIL OF the BOROUGH OF FORT LEE and the Construction Official of the Borough of Fort Lee, Defendants-Appellants, and Michael Inganamort, Mico, a New Jersey Partnership, and Metropolitan Life Insurance Company, Intervenors. |
| Court | New Jersey Superior Court — Appellate Division |
Kenneth W. Herbert, Palisades Park, for defendants-appellants.
Hartmann, Brooks & Van Dam, for plaintiff-respondent (Stuart D. Liebman, Paramus, on the brief). Before Judges PRESSLER, O'BRIEN and SCALERA.
The opinion of the court was delivered by
O'BRIEN, J.A.D.
This is an appeal by defendant Mayor and Council of the Borough of Fort Lee (Mayor and Council) from a determination by the Law Division that the Mayor and Council did not have jurisdiction to hear and decide an appeal by objectors 1 to a use variance granted by the Board of Adjustment ( N.J.S.A. 40:55D-70d; N.J.S.A. 40:55D-17a). We reverse and remand.
Plaintiff Harry Grant Center Corp. (Grant) owns certain property in the Borough of Fort Lee, located partly in a C-3 zone, a commercial zone where high-rise office buildings are permitted but residential use is prohibited, and partly in an R-5 residential zone, which permits garden-type apartments. Grant proposed to erect a 28-story condominium apartment complex entirely on the portion of the property in the C-3 zone. When the construction official denied Grant's application because it did not conform to the Borough's zoning ordinance, Grant appealed to the Board of Adjustment (Board). After several hearings, the Board unanimously granted site plan approval on February 2, 1988, including a use variance pursuant to N.J.S.A. 40:55D-70d and other related bulk variances.
Intervenors Michael Inganamort, Mico, a New Jersey partnership, and Metropolitan Life Insurance Company (objectors or intervenors) who had objected to the application before the Board, filed a notice of appeal on January 14, 1988, with the Mayor and Council. After a hearing on March 7, 1988, the Mayor and Council adopted a resolution on March 10, 1988, reversing the Board and denying Grant's application.
On March 31, 1988, Grant filed a complaint in lieu of prerogative writs 2 against the Mayor and Council and the construction official seeking a judgment, either declaring the resolution of the Mayor and Council adopted on March 10, 1988 null and void or, in the alternative, declaring said resolution to be an affirmance of the action of the Board and directing the construction official to issue necessary permits for construction. Process was by order to show cause, and the matter was ultimately heard by the Law Division on May 10, 1988. In addition to Grant and defendants Mayor and Council, the objectors were also represented by counsel and presented oral argument. 3
After oral argument on May 10, 1988, the Law Division concluded that the Mayor and Council were without jurisdiction to hear Grant's appeal and entered a judgment on May 24, 1988 declaring the resolution adopted by the Mayor and Council on March 10, 1988, null and void and of no effect for the reasons set forth in its oral opinion. Following Tucci v. Borough of Moonachie, 220 N.J.Super. 280, 531 A.2d 1093 (Law Div.1987), the trial judge concluded that the Mayor and Council lacked jurisdiction because it had not adopted an ordinance after the amendment of N.J.S.A. 40:55D-17a by L. 1984, c. 20, § 6. This amendment limits appeals to the governing body from a final decision of the Board of Adjustment approving a variance pursuant to N.J.S.A. 40:55D-70d to those municipalities which permit such appeals by ordinance.
As originally enacted in the Municipal Land Use Law, N.J.S.A. 40:55D-17a read in pertinent part:
a. Any interested party may appeal to the governing body (1) from any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act, [40:55D-70d] and (2) if so permitted by ordinance, any other final decision of a board of adjustment or planning board on any other class of applications for development.
By L. 1979, c. 216 § 11, this section was amended to read as follows:
a. Any interested party desiring to appeal the decision of a municipal agency shall appeal to the governing body (1) any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act, [40:55D-70d] and
(2) if so permitted by ordinance, any other final decision of a board of adjustment or planning board on any class of applications for development.
By L. 1984, c. 20 § 6, this section of N.J.S.A. 40:55D-17a was finally amended to read:
a. Any interested party may appeal to the governing body any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act [40:55D-70d] if so permitted by ordinance.
After the Legislature enacted the Municipal Land Use Law by L. 1975, c. 291, which became effective on August 1, 1976, the Mayor and Council adopted an ordinance in 1977, including a section concerning appeals from the Zoning Board of Adjustment to the Borough Council, which provides in pertinent part:
17-4.2 Appeals from Zoning Board of Adjustment to Borough Council
a. Any interested party may appeal to the governing body any final decision of the board of adjustment granting a variance pursuant to subsection 17-2.7d of this chapter. 4
As the trial judge observed, subsection 17-2.7d deals with fees to be paid for applications for variances. On May 25, 1988, the Mayor and Council moved under R. 4:50 for relief from the final judgment entered on May 24, 1988, in order to introduce into evidence "the corrected version" of the ordinance authorizing the Borough to hear "use" variance appeals. Attached to that motion was an affidavit of the borough attorney characterizing the reference to subsection 17-2.7d 5 as a typographical error and noting that the court had inquired of him as to how the ordinance should properly be read, to which he had responded that he would confer with the borough clerk in an effort to resolve the question. Notwithstanding that the ambiguity was not resolved, the attorney stated that the trial judge entered judgment for plaintiff relying "I believe, on an interpretation of the Ordinance which permitted appeals to the Governing Body from the grant by the Board of Adjustment of any type of variance." In his affidavit the attorney then referred to an investigation by the borough clerk, who he said would be submitting a certification explaining that the ordinance was intended to read as follows:
a. Any interested party may appeal to the governing body any final decision of the board of adjustment granting a variance pursuant to Secion [sic ] 10(d) of Article II of this Ordinance....
By order entered June 10, 1988, the trial judge denied the motion of the Mayor and Council for relief from the judgment for reasons set forth on the record on June 10, 1988.
It is unclear whether the borough attorney ever submitted the certification of the borough clerk to the trial judge in support of his motion, and we have not been supplied with a copy of the transcript of June 10, 1988, giving the reasons why the trial judge denied the motion. At our request the borough attorney supplied us with a copy of subsection 17-4.2 of the Revised Ordinances "Supp. 1/83," which reflects that the language quoted by the trial judge is that which is contained in the ordinance. In response to our further request for a copy of the certification of the borough clerk which was to be submitted to the trial judge in support of the motion for relief from judgment, according to the borough attorney's affidavit submitted with that motion, we received a certification of Carol Kohout, the Borough Clerk, dated June 26, 1989. Obviously, this is not the certification submitted to the trial judge and is improperly before us. However, that certification states that the reference to subsection 17-2.7d was intended to read subsection 17-2.10d, concerning the power of the Board of Adjustment to grant use variances.
Since we are unable to determine whether a certification by the borough clerk was ever provided to the trial judge and are unaware of the reasons why the trial judge denied the motion for relief from final judgment, we are obliged to remand this matter to the trial judge to address the question as to the language of the Fort Lee ordinance as enacted and published after its adoption and as considered by the judge in reaching his decision that the Mayor and Council was without jurisdiction to hear the appeal from the Board. However, we address the issue raised by this appeal as guidance to the trial judge since we conclude that Tucci v. Borough of Moonachie, upon which he relied, was incorrectly decided. Furthermore, in addressing the question of the propriety of the Mayor's vote, although not decided by him, the trial judge cited Preakness Hill v. Wayne, 221 N.J.Super. 175, 534 A.2d 58 (App.Div.1987), which has since been overruled by the Supreme Court, as we will discuss later.
In Tucci v. Borough of Moonachie, the Law Division determined that the failure of the Borough of Moonachie to adopt an ordinance permitting any interested party to appeal a final decision of the board of adjustment approving a variance pursuant to subsection 40:55D-70d, after the 1984 amendment to N.J.S.A. 40:55D-17a, left the municipality without jurisdiction to hear such an appeal. This decision was made in spite of the fact that Moonachie had, before the 1984 amendment to N.J.S.A. 40:55D-17a, adopted an ordinance which provided:
Any interested party desiring to appeal the decision of the municipal agency shall appeal to the governing body (a) any final decision of a board of adjustment approving an application for...
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