Preakness Hill, Inc. v. Township Council of Wayne Tp.
| Decision Date | 19 November 1987 |
| Citation | 221 N.J.Super. 175,534 A.2d 58 |
| Parties | PREAKNESS HILL, INC., Plaintiff-Appellant, v. The TOWNSHIP COUNCIL OF the TOWNSHIP OF WAYNE, and the Township of Wayne, in the County of Passaic and State of New Jersey, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Gavenda, Rubin & Connelly, Wayne, for plaintiff-appellant (A. Michael Rubin, on the brief).
Anthony Fiorello, Totowa, for defendants-respondents (Holly C. Stern, Wayne, on the brief).
Before Judges MICHELS, SHEBELL and A.M. STEIN.
The opinion of the court was delivered by
SHEBELL, J.A.D.
Appellant Preakness Hill, Inc. was granted a "special reasons" use variance by the Wayne Township Board of Adjustment to construct cluster housing on a 4.4 acre site. On appeal by a neighboring property owner, the respondent township council held a de novo hearing based on the record below and voted 4 "yes," 3 "no," 2 absent, on a resolution to reverse the board of adjustment action. Thereafter applicant's attorney advised the council by letter that the vote was insufficient to satisfy the enhanced majority requirement of N.J.S.A. 40:55D-17e and filed this action in lieu of prerogative writ.
The council attempted to schedule a further meeting so that the absent members could vote. When the applicant sought to restrain a further hearing, the parties agreed to an order staying the hearing until the Law Division could rule on the effect of the vote. The trial judge originally found for the applicant, relying on the Law Division opinion in Committee for a Rickel Alternative v. City of Linden, 211 N.J.Super. 79, 510 A.2d 1194 (Law Div.1986). Before entering formal judgment, he reversed his decision based upon the Appellate Division's reversal in Rickel, 214 N.J.Super. 631, 520 A.2d 823 (App.Div.1987) (). Plaintiff Preakness Hill appeals the decision of the trial court. The Supreme Court denied appellant's motion for direct certification.
We, the majority herein, disagree with the holding in Rickel and reverse the Law Division's judgment. The simple fact is that the result compelled by Rickel and the dissent herein would result in the reversal of an otherwise valid board of adjustment grant of a variance notwithstanding the failure of the governing body to muster the statutorily required "enhanced majority" vote on the motion to reverse the board's action. Such a decision would fly in the face of clear legislative intent.
A detailed statement of the facts involved in the variance application will serve no useful purpose as there is only a legal issue before us at this time. The question presented concerns the effect of the failure of a governing body to reach an enhanced majority vote on the appeal from the board of adjustment. Is the variance appealed from granted or denied?
The issues in this case are governed by § 17 of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Section 17 is entitled "appeal to the governing body; time; notice; modification; stay of proceedings." Subsection e of § 17 provides:
The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse, remand, or affirm with or without conditions any final action of the board of adjustment.
Subsection c of § 17 provides in pertinent part:
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to subsection i. of section 6 of this act (C. 40:55D-10), unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the board. [Emphasis added].
Under N.J.S.A. 40:55D-3, the term "shall" indicates a mandatory requirement. Thus, § 17c makes it mandatory that the governing body: (1) hold a hearing; (2) conclude a review of the record in the specified time period, and (3) render a decision. Failure to carry out each of these specified requirements within 95 days constitutes a decision affirming the action of the board.
Appellant contends that a decision was not reached by the governing body within 95 days of the publication of notice of the board of adjustment decision, and therefore, the action of that board should be affirmed. "Decision" is not defined in the Land Use Law. "Decision" is elsewhere defined as a
determination arrived at after consideration of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
A determination of a judicial or quasi judicial nature. A judgment or decree pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. [Black's Law Dictionary 366 (5th ed. 1979) (Emphasis added) ].
Webster's Third New International Dictionary 585 (1976) defines "decision" as
the act of deciding ... the act of settling or terminating (as a contest or controversy) by giving judgment; a determination arrived at after consideration; settlement, conclusion--see judgment, precedent, stare decisis; an account or report of a conclusion, esp. of a legal adjudication or judicial determination of a question or cause ...; an announcement (as of a judge) declaring the winner in a contest; the quality of being decided; prompt and fixed determination; firmness ...; the act of forming an opinion or of deciding upon a course of action....
A "determination," in turn, "implies an ending or finality of a controversy or suit." Black's, supra at 405.
The common meaning of decision invariably points to a finality or conclusion. Thus, it is reasonable to infer that the Legislature, by requiring a decision under § 17c, intended to compel not merely the action of a vote on the part of the governing body, but decisive action.
Section 17d states that
[t]he governing body may reverse, remand or affirm with or without the imposition of conditions the final decision of the board of adjustment approving a variance pursuant to subsection d. of section 57 of P.L. 1975, c. 291 (C. 40:55D-70). The review shall be made on the record made before the board of adjustment. However, if any of these actions is to be taken it shall be decided by an enhanced majority under the provisions of N.J.S.A. 40:55D-17e.
We believe it was the intent of the Legislature that if the governing body fails to vote to reverse, remand, or affirm by an enhanced majority then § 17c is to apply and the 95-day provision will control. The Legislature provided that only the approval of a variance is appealable to the governing body under N.J.S.A. 40:55D-17a, and it was aware that this would mean that a board of adjustment's granting of a variance would be affirmed in the absence of decisive action. The Legislature itself made it clear in its enactment of § 17c that unless the governing body reaches a decision within 95 days such inaction "shall constitute a decision affirming the action of the board."
Prior to the passage of the new Municipal Land Use Law, a board of adjustment could only recommend the granting of a use variance and could not itself approve a variance. N.J.S.A. 40:55-39d (repealed 1975). The new statute changed the authority of boards of adjustment to give them full authority to grant use variances on the affirmative vote of five members. N.J.S.A. 40:55D-70(d). We recognize that "variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning." Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 275, 234 A.2d 385 (1967). However, as the Supreme Court pointed out in Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987),
the specific legislative changes in our statutes regulating land use and zoning reflect significant policy decisions by the legislature concerning the proper relationship between use variances and zoning ordinances. The power to grant use variances has been shifted from the governing body, whose responsibilities include enactment of the zoning ordinance, to the board of adjustment. This shift of authority undoubtedly reflects the legislature's determination that boards of adjustment possess special competence to decide use-variance applications, and that absent an appeal no participation by the governing body is necessary. However, delegation of the authority to grant use variances to boards of adjustment increases the likelihood that such variances may conflict with the intent of the master plan and zoning ordinance to a greater extent than was the case when the power to grant them was vested in the governing body. Tension between use variances and the zoning ordinance and master plan is less likely in those municipalities that authorize appeals from the grant of use variances to the governing body. N.J.S.A. 40:55D-17(a). [Id. at 19-20, 526 A.2d 109 (emphasis added) ].
Respondents and the dissent argue that since the Supreme Court's decision in Evesham Tp. Bd. of Adj. v. Evesham Tp., 86 N.J. 295, 430 A.2d 922 (1981) sets a de novo standard for a governing body's review of a board of adjustment decision, the applicant for the variance should retain the burden of persuasion on appeal before the governing body even though the applicant successfully convinced the board to grant the variance. The court in Rickel acknowledged this philosophy when it stated:
We also point out that in general a person seeking relief from a public body has the burden to demonstrate his entitlement to it. Thus, an appellant ordinarily has the burden to show error in...
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...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 In Tucci v. Borough of Moonachie, the Law Di......
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...appearing; It is ORDERED that the judgment of the Appellate Division is summarily reversed. Jurisdiction is not retained. (See 221 N.J.Super. 175, 534 A.2d 58) ...