Sansone Oldsmobile-Cadillac, Inc. v. Board of Adjustment of Borough of Shrewsbury

• Decision Date: 18 March 1986
• Docket Number: OLDSMOBILE-CADILLA,INC
• Citation: 511 A.2d 748,211 N.J.Super. 304
• Parties: SANSONE, Plaintiff, v. The BOARD OF ADJUSTMENT OF the BOROUGH OF SHREWSBURY, Defendant, Carol A. Hanlon, Defendant-Intervenor.
• Court: New Jersey Superior Court

Page 304

211 N.J.Super. 304

511 A.2d 748

SANSONE OLDSMOBILE-CADILLAC, INC., Plaintiff, v. The BOARD OF ADJUSTMENT OF the BOROUGH OF SHREWSBURY, Defendant Carol A. Hanlon, Defendant-Intervenor.

Superior Court of New Jersey, Law Division Monmouth County.

March 18, 1986.

James J. Shrager, Roseland, for plaintiff (Hannoch & Weisman, Roseland, attorneys).

Robert H. Otten, Red Bank, for defendant Bd. of Adjustment of the Borough of Shrewsbury (Crowell & Otten, Red Bank, attorneys).

John J. Anastasio, Shrewsbury, for defendant-intervenor Carol A. Hanlon.

MILBERG, A.J.S.C.

The narrow issue presented in this action in lieu of prerogative writs is whether an applicant before a board of adjustment has an absolute right to withdraw a pending variance application, without prejudice, prior to a formal vote thereon.

Plaintiff, Sansone Oldsmobile-Cadillac, Inc. (Sansone) operates an automobile dealership located on Newman Springs Road in the Borough of Red Bank, Monmouth County, New Jersey. In or around 1984, Sansone became the contract-purchaser of a certain tract of land (hereinafter the tract or the premises) consisting of 6.51 acres located almost directly across the street from its car dealership but situated in the Borough of Shrewsbury. The tract was previously occupied by a supermarket, which was destroyed by fire several years ago. Except for the market's foundation, the premises have since remained vacant.

Sansone proposed to upgrade the tract into an automobile dealership comprising two buildings--a showroom with offices and a service/parts facility--together with a parking area, a car storage facility and other related improvements. Appropriate buffers between the premises and the existing residential area were also contemplated.

Under the zoning ordinance for the Borough of Shrewsbury, the tract is located in a "B-2" zone, which permits general businesses of the small neighborhood type but does not allow automobile dealerships.

Accordingly, on June 19, 1984, Sansone applied for preliminary and final site plan approval, use and bulk variances, permission to erect an eight-foot high buffer fence, and approval for an oversized, free-standing sign.

Public hearings were held before the Shrewsbury Board of Adjustment (board) on July 5, August 1, September 5, October 3, and November 7, 1984. The stenographic records of the hearings indicate that virtually the entire length of each board meeting was devoted to the presentation of either Sansone's or the objectors' case with respect to the application.

On December 5, 1984, the board deliberated on the application and apparently decided to deny the variance. ¹ The deliberations of the board are contained in the minutes of the meeting of December 5, 1984. ² Board Chairman Kroll opened the discussions The floor is open as far as the Board members are concerned to a discussion of the application before us and what the feeling of the Board is with respect to the application and what sort of Resolution we should ask our attorney to draw up for us to vote on at our next meeting.

Chairman Kroll then defined the "overriding issue" before the board as "should we grant a use variance for this property." Following a discussion among the board members as to what should be considered on Sansone's application for a use variance, Kroll continued:

[I]t is the sort of thing that there ought to be some real overwhelming reasons, special reasons for doing it which I don't feel were given. There were no real special reasons given as far as why this use should be permitted on this parcel of property in place of the use for which it was zoned other than the arguments that it hasn't sold for that use which is a bit attenuous [sic] because no one ever knows what sort of an offer might have been made.

Board member Clarke then discussed the "pro's and con's" of Sansone's application, whereupon he concluded:

I think if we were to approve this variance we would be hitting a part of our town which is very important and I think that there would be a detrimental effect to that area which I am certainly willing to listen to other Board members positions on this point, I feel this would not be a wise thing to do at this time, to put in the applicant's new car dealership.

Board member Sarpolus agreed with Clarke. Board member Beers agreed with Clarke in large part but added that he did not foresee any more inconvenience--specifically, the annoyances of traffic and lighting--presented by the proposed dealership than that presented by a shopping center, the use for which the premises had previously been employed. Nevertheless, he determined that "[t]here is no overriding reason to upset the B-2 [zone]."

Board member McGuire discussed the evidence presented on the application and concluded: "I individually did not find that the applicant made out a case for special reasons as I define it."

At the conclusion of these discussions, Chairman Kroll directed the board attorney, Robert H. Otten, "to put together a Resolution denying the application as [that] was the consensus of the Board." ³ Kroll added that the resolution would be submitted for a vote of the board at the regular meeting of the board scheduled for January 2, 1985.

By letter dated December 12, 1984, Sansone attempted to withdraw its application without prejudice. At the meeting of the board on January 2, 1985, the request to withdraw the application was discussed at length. The minutes ⁴ of that meeting demonstrate that, after serious consideration, the request was submitted to a formal vote, with members Kroll, Clarke, Beers and McGuire participating. All four members voted to deny the request, whereupon they proceeded to discuss the resolution prepared by the board attorney. After certain revisions, the same four members adopted the resolution denying Sansone's variance application. ⁵

Thereafter, on February 25, 1985, Sansone commenced this action in lieu of prerogative writs attacking the board's denial of its request to withdraw the application and demanding a reversal of the denial of the variance. On April 26, 1985, I granted Carol A. Hanlon, an objector, leave to intervene as a defendant.

At the pretrial on January 7, 1986, Sansone abandoned all contentions save the claim respecting the board's denial of its request to withdraw the variance application without prejudice.

At the trial on February 27, 1986, it was agreed that if it is determined that a vote on the application in fact occurred at the meeting of the board on December 5, 1984, any right to withdraw the application was terminated. If, however, it is determined that a vote did not occur, then two issues must be resolved: (1) whether the right to withdraw an application prior to a vote thereon is absolute or subject to the board's discretion; (2) if discretionary with the board, then whether there was an abuse of discretion under the circumstances.

I.

Did the deliberations of the board at the meeting of December 5, 1984, constitute a vote to deny the application?

I find that a vote denying the variance did not, in fact, occur at the meeting of the board on December 5, 1984.

Counsel for the board argues that the deliberations of the board members constituted a vote--that the resolution drafted for adoption at the meeting of January 2, 1985, was merely the "memorialization" process described in N.J.S.A. 40:55D-10(g)(2). That section, however, speaks in terms of a previous "vote," not prior deliberations. See also N.J.S.A. 40:55D-70(d).

Indeed, to equate deliberations with a vote would impose on a reviewing court the needless burden of piercing board discussions to discern whether, under the circumstances of the particular case, an unequivocal negative or affirmative determination was reached. This I shall not foster.

While it appears in this case that the Board members indicated by their discussions an intention to deny the variance, they were not bound by their preliminary deliberations. A formal vote was necessary; one did not occur here.

II.

The withdrawal of Sansone's application--an absolute right or subject to the board's discretion?

The Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., contains no provision regarding the right of an applicant to withdraw, without prejudice, an application before a zoning board of adjustment prior to a formal decision thereon. There is no reported decision of a court of this State bearing on the issue. Nevertheless, upon review of relevant case law, I conclude that such a withdrawal is subject to the discretion of the board.

I begin with the premise that a zoning board of adjustment is an independent administrative body acting in a quasi -judicial capacity. Rogoff v. Tufariello, 106 N.J.Super. 303, 308, 255 A.2d 781 (App.Div.), certif. den. 54 N.J. 583, 258 A.2d 370 (1969); Reinauer Realty Corp. v. Nucera, 59 N.J.Super. 189, 201, 157 A.2d 524 (App.Div.), certif. den. 32 N.J. 347, 160 A.2d 845 (1960); see Kramer v. Board of Adj., Sea Girt, 45 N.J. 268, 282, 212 A.2d 153 (1965). While its function is termed "quasi-judicial," a board of adjustment "partakes of the judicial" nonetheless, Handlon v. Belleville, 4 N.J. 99, 104, 71 A.2d 624 (1950); West Milford Tp. Planning Bd. v. Tp. Council, 123 N.J.Super. 135, 144, 301 A.2d 781 (Law Div.1973); accordingly, many of the principles and doctrines developed by and for the courts have developed upon proceedings before boards of adjustment and other administrative tribunals. See generally Hill Homeowners v. Passaic Bd. of Adj., 129 N.J.Super. 170, 178-179, 322 A.2d 501 (Law.Div.1974), aff'd 134 N.J.Super. 107, 338 A.2d 824 (App.Div.1975).

Recently, in City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980), the New Jersey Supreme Court recognized that "there are important goals to be achieved from the prudent and selective application in administrative proceedings of such [court-fashioned] doctrines as res judicata, collateral estoppel, and the single...