TWC Realty Partnership v. Zoning Bd. of Adjustment of Tp. of Edison

• Decision Date: 14 May 1998
• Citation: 315 N.J.Super. 205,717 A.2d 439
• Parties: TWC REALTY PARTNERSHIP, Plaintiff, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, Defendant. Middlesex County
• Court: New Jersey Superior Court

Page 205

315 N.J.Super. 205

717 A.2d 439

TWC REALTY PARTNERSHIP, Plaintiff, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, Defendant.

Superior Court of New Jersey,

Law Division,

Middlesex County.

Decided May 14, 1998.

John Wiley, Jr., Metuchen, for plaintiff.

Jeffrey B. Lehrer, Warren (Bivona, Cohen, Kunzman, Coley, Yospin Bernstein & DiFrancesco, attorneys), for defendant; Mr. Lehrer and Albert E. Cruz, on the brief.

Donald M. Ross, Newton (Dolan and Dolan, attorneys), submitted a Letter Brief on behalf of Amicus Curiae, New Jersey Planning Officials.

David J. Frizell, Metuchen (Frizell, Goldman & Jaffe, attorneys) submitted a Letter Brief on his own behalf, as Amicus Curiae.

WOLFSON, J.S.C.

In this zoning case, TWC Realty Partnership ("TWC") challenges the Edison Zoning Board's refusal to review the merits of its use variance application to construct a multi-unit congregate care housing facility for the elderly on a 23+ acre parcel in the 2200+ acre Light-Industrial ("LI") Zone. Instead, based upon its interpretation of Township of Dover v. Board of Adjustment of the Township of Dover, 158 N.J.Super. 401, 386 A.2d 421 (App.Div.1978), the Board determined that it lacked jurisdiction to adjudicate the merits of the development application. While Dover, supra, 158 N.J.Super. at 405, 386 A.2d 421, is, by its own analysis, a standing case ¹, dictum within the opinion has spawned a confused and inconsistent approach by zoning boards which have attempted to resolve questions concerning their own jurisdiction. This issue is of particular significance because it confronts the potential conflict between the board of adjustment's power to grant use variances and the governing body's power to zone. ² Because no subsequent Appellate decision has squarely addressed the manner and extent to which zoning boards may act with regard to their own jurisdiction, and since the reported trial court decisions pre-date significant developments in the field of land use law, I must determine whether the Board's refusal to hear and decide the merits of TWC's variance application was authorized by the Municipal Land Use Law ("MLUL "), N.J.S.A 40:55D-1 to 129. For the reasons articulated below, I conclude that it was not.

II. FACTUAL AND PROCEDURAL BACKGROUND

In its application, TWC proposed to construct a congregate care housing facility for the elderly in three five-story buildings. As proposed, each building contained approximately 167 units. Twenty percent, or 100 of the units, were to be set aside as Mount Laurel units, to be developed under recognized affordable housing guidelines. Over 400 parking spaces were proposed.

The contemplated community facilities included libraries, lounges, a convenience/gift shop, kitchen/dining areas, a beauty parlor, an activity area, as well as physical therapy and medical facilities. Outdoor recreational facilities, including two tennis courts, a large swimming pool and pool house, two putting greens, and a shuffle board court were also contemplated. This self-contained community was to be known as Raritan Village. ³

In October, 1994, approximately two months after the application was filed, the Board first questioned the propriety of entertaining the application. Because of the breadth of the application, its size and intensity, and the extent to which it deviated from the standards of the light industrial zone, the Board apparently believed that it lacked jurisdiction to hear the application, although no formal resolution to that effect was adopted.

A revised application was thereafter submitted in March, 1996. On May 28, 1996, following the Board's determination of "completeness," see N.J.S.A. 40:55D-10.3, the Board held a hearing, although its focus was not the merits of the application, but rather, whether under the Dover case, it could decline to review the application in the first instance. ⁴ Thereafter, utilizing certain of the criteria articulated in Dover, 158 N.J.Super. at 412-13, 386 A.2d 421, the Board concluded that it could, and dismissed the application, citing the lack of jurisdiction as the basis for its decision. In so deciding, the Board reasoned that because the request for relief was so expansive ⁵, it was tantamount to a request for a rezoning of the parcel, which, under the enabling legislation, was a power vested exclusively in the Governing Body. See N.J.S.A. 40:55D-26 and -62. This, coupled with the well-established principle that a local board's decision carries with it a presumption of validity, encompasses the essence of the Board's argument.

III. DELINEATION OF POWERS AND SCOPE OF REVIEW

The Board of Adjustment is an independent administrative agency whose authority is derived from the Legislature via the Municipal Land Use Law ("MLUL "), N.J.S.A. 40:55D-1 to 129, the enabling authority which authorizes and defines the limits of a municipality's procedural and substantive power to regulate land development within its borders. Within this regulatory framework, the Board of Adjustment is vested with the primary authority under N.J.S.A 40:55D-70d to determine whether variances should be granted, and ancillary powers to grant site plan and subdivision approvals in conjunction therewith. See N.J.S.A 40:55D-76b. These delegated powers may not be exercised by any other body. See, e.g., Cronin v. Township Committee, 239 N.J.Super. 611, 571 A.2d 1354 (App.Div.1990) (governing body's determination regarding existence of non-conforming use deemed ultra vires since authority to a adjudicate this issue is vested exclusively with the zoning board); see also N.J.S.A 40:55D-20.

In recognition of the fact that local officials are presumed to be "thoroughly familiar" with their community's characteristics, zoning board decisions, when factually grounded, are ordinarily cloaked with a presumption of validity, allowing the board wide latitude in the exercise of the discretion delegated to it. Ward v.. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954); Pullen v. So. Plainfield Planning Bd., 291 N.J.Super. 303, 312, 677 A.2d 278 (Law Div.1995), aff'd, 291 N.J.Super. 1, 6, 676 A.2d 1095 (App.Div.1996). On the other hand, however, a board's decision regarding a question of law, such as the scope of its own authority or jurisdiction, is subject to a de novo review by the courts, see Grancagnola v. Planning Bd. of Twp. of Verona, 221 N.J.Super. 71, 75-76, n. 5, 533 A.2d 982 (App.Div.1987); New Brunswick Cellular Tel. Co. v. Edison Tp. Zoning Bd., 300 N.J.Super. 456, 465, 693 A.2d 180 (Law Div.1997), and is entitled to no deference since a zoning board has "no peculiar skill superior to the courts" regarding purely legal matters. Jantausch v. Bor. of Verona, 41 N.J.Super 89, 96, 124 A.2d 14 (Law Div.1956), aff'd, 24 N.J. 326, 131 A.2d 881 (1957); Pagano v. Zoning Bd. of Adjustment, 257 N.J.Super. 382, 396-97, 608 A.2d 469 (Law Div.1992).

While the Board of Adjustment is empowered with quasi-judicial authority to adjudicate requests to deviate from the established zoning scheme, it remains the responsibility of the governing body to create the zoning scheme in the first instance through the adoption of comprehensive land use regulations. See, e.g., N.J.S.A 40:55D-62 (power to zone), -32 (adoption of an official map), -37 to -42 (adoption of ordinances to regulate subdivisions, site plans, and off-tract developer contributions) and -45 (ordinances authorizing planned developments). "It is the governing body's ultimate responsibility to establish, by the adoption of its zoning ordinances and amendments thereto, the essential land use character of the municipality." Dover, 158 N.J.Super. at 411, 386 A.2d 421; see N.J.S.A. 40:55D-62.

IV. THE ZONING BOARD'S AUTHORITY

Once created, a Zoning Board shall exercise the power delegated to it in Article 9 of the MLUL, ( N.J.S.A. 40:55D- 69 to -76). ⁶ The Board's original jurisdiction requires it, in the first instance, to assess the "completeness" of a proposed development application. See, N.J.S.A. 40:55D-10.3. Once the application has been deemed complete, however, the Board "shall grant or deny approval of the application (emphasis added)" within 120 days. N.J.S.A. 40:55D-76c. ⁷ By its own terms, the statute does not speak in permissive terms, but rather mandates either an approval or a denial of the application. Id; see also Manalapan Holding Co. v. Hamilton Tp. Pl. Bd., 92 N.J. 466, 482, 457 A.2d 441 (1983) ("[W]e do not countenance a permissive interpretation or application" of the statute, and no "waiver or relaxation of its terms" may be implied). Indeed, the board's failure to act within the time period prescribed, "shall constitute approval of the application" N.J.S.A. 40:55D-76c (emphasis added); see also Manalapan Holding, Co., supra, 92 N.J. at 482, 457 A.2d 441.

Because the MLUL does not explicitly authorize the Board to skirt its jurisdictional mandate to hear and decide a "complete" development application, the Board cites to decisional authority in an effort to buttress its position, relying primarily on the Dover case, supra, 158 N.J.Super. at 401, 386 A.2d 421. There, the Appellate Division confronted the issue of whether a municipal governing body had standing to challenge a Board of Adjustment's grant of a variance on the ground that the relief granted was so expansive in nature and impact as to have infringed upon the governing body's exclusive power to zone. See id. at 405, 386 A.2d 421 (emphasis added). In holding that the governing body had standing to challenge the Board's alleged arrogation of its authority, the court reversed and remanded the matter for trial, identifying the factors to be considered by the trial court in adjudicating the contentions of the governing body. ⁸ Contrary. to the assertions of the Board, Dover never contemplated the board reserving unto itself the authority to dismiss an application without deciding the merits. Indeed, the specific issue raised in that case can...