Monroe Realty Co. v. Middletown Properties, Inc.

• Decision Date: 25 November 1981
• Citation: 442 A.2d 1095,182 N.J.Super. 659
• Parties: MONROE REALTY CORP., a Corporation in the State of New Jersey, Plaintiff, v. MIDDLETOWN PROPERTIES, INC. and the Borough Council of the Borough ofEatontown, Defendants.
• Court: New Jersey Superior Court

Page 659

182 N.J.Super. 659

442 A.2d 1095

MONROE REALTY CORP., a Corporation in the State of New Jersey, Plaintiff, v. MIDDLETOWN PROPERTIES, INC. and the Borough Council of the Borough ofEatontown, Defendants.

Superior Court of New Jersey, Law Division Monmouth County.

Decided Nov. 25, 1981.

Thomas J. Spinello, Tinton Falls, for plaintiff.

Gabriel E. Spector, Eatontown, for defendant Middletown Properties, Inc. (Landy & Spector, Eatontown, attorneys).

John W. O'Mara, Eatontown, for defendant Borough Council of Borough of Eatontown.

SHEBELL, A. J. S. C.

Plaintiff instituted an independent action in lieu of prerogative writs challenging a resolution of the borough council of Eatontown which granted defendant Middletown Properties, Inc., variances as a means of settling a prior prerogative writ action. The prior action was pending before the court, having been initiated by Middletown Properties, Inc., challenging the earlier denial of its requested variances by both the board of adjustment and the borough council. Plaintiff herein was not a party to the prior action, being neither a necessary party nor having sought to intervene therein.

Plaintiff alleges in its complaint that the council's action was in violation of the New Jersey statutes which purportedly give such powers to boards of adjustment and that the testimony was not sufficient to establish the granting of the variance. The resolution adopted by the council was acted upon at a public meeting and a final judgment by consent was entered by this court.

There is no New Jersey case dealing with the question of the right of an interested party to bring an independent action to challenge a settlement of an action in lieu of prerogative writs where action by the local governing board is required. Compare Morton v. Clark Tp., 102 N.J.Super. 84, 245 A.2d 377 (Law Div. 1968), aff'd 108 N.J.Super. 74, 260 A.2d 5 (App.Div.1968), decided under N.J.S.A. 40:55-39(d) when the governing body had somewhat more limited power to approve or disapprove recommendations of the zoning board.

The present statute, N.J.S.A. 40:55D-17(d), provides that:

The governing body may reverse, remand or affirm, wholly or in part, or may modify the final decision of the planning board or board of adjustment, as the case may be.

Plaintiff relies on the case of Dover Tp. v. Board of Adjustment, 158 N.J.Super. 401, 386 A.2d 421 (1978), for its position that the governing body is without jurisdiction to act de novo on matters where a variance is sought following the submission of a revised plan which had not previously been submitted to the board of adjustment. The legislative intent cited in that case was contrary to the intent evidenced by the present legislative enactment in N.J.S.A. 40:55D-17(d), and plaintiff's position cannot be accepted by this court. Evesham Tp. Bd. of Adj. v. Evesham Tp., 169 N.J.Super. 460, 404 A.2d 1274 (Law Div. 1979), aff'd 176 N.J.Super. 503, 423 A.2d 1012 (App.Div.1980), rev'd 86 N.J. 295, 430 A.2d 922 (1981). This court holds that the action of the governing body, having been taken at a public meeting, was an event consistent with the judicial proceedings under court supervision and was within the statutory jurisdiction of the borough council.

Plaintiff did not attempt to intervene in the prior action although it had a right to do so had it acted in a timely fashion. Stokes v. Lawrence Tp., 111...