Washington Tp. Zoning Bd. of Adjustment v. Washington Tp. Planning Bd.

• Decision Date: 15 April 1987
• Citation: 525 A.2d 331,217 N.J.Super. 215
• Parties: WASHINGTON TOWNSHIP ZONING BOARD OF ADJUSTMENT, Plaintiff-Appellant, v. WASHINGTON TOWNSHIP PLANNING BOARD, Morris Novack, Individually and Robert Pelio, Individually, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 215

217 N.J.Super. 215

525 A.2d 331

WASHINGTON TOWNSHIP ZONING BOARD OF ADJUSTMENT, Plaintiff-Appellant, v. WASHINGTON TOWNSHIP PLANNING BOARD, Morris Novack Individually and Robert Pelio, Individually Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Feb. 25, 1987.

Decided April 15, 1987.

Robert C. Holston, for plaintiff-appellant (Holston, MacDonald, Donnelly and Morgan, attorneys; David W. Morgan, on the brief).

S. David Brandt, for defendants-respondents Novack and Pelio (Brandt, Haughey, Penberthy, Lewis & Hyland, attorneys; S. David Brandt and Patrick F. McAndrew, on the brief).

Respondent Washington Township Planning Board did not participate in the appeal.

Before Judges DEIGHAN, HAVEY and MUIR, Jr.

The opinion of the court was delivered by

HAVEY, J.A.D.

Plaintiff Washington Township Zoning Board of Adjustment appeals from a dismissal of its action in lieu of prerogative writs against defendants Washington Township Planning Board, Morris Novack and Robert Pelio. In granting defendants summary judgment, Judge DeSimone determined that the zoning board had no standing to institute the suit. He also concluded that the action was time-barred by the 45-day period prescribed by R. 4:69-6. We now affirm.

Defendant-developer Morris Novack proposed to construct a 155,000 square foot shopping center on an 18-acre tract he owned in Washington Township. The tract is zoned predominantly "neighborhood-commercial" (NC) with the exception of two "legs" extending into the high density-residential zone.

Novack applied to the planning board for site plan approval as well as variances ( N.J.S.A. 40:55D-70(c)) including a variance permitting individual stores within the NC-zone in excess of 10,000 square feet each. The relevant portion of the Washington Township ordinance (section 82-73), which sets forth the permitted uses, provides that "no single store shall occupy a floor area in excess of 10,000 square feet." Contemporaneous with his planning board application, Novack applied to the zoning board seeking a limited special reasons variance ( N.J.S.A. 40:55D-70(d)) for permission to use two "legs" of the tract zoned in the highway density for commercial purposes and for a special reasons variance to "enlarge the permitted uses to include all those allowed within the shopping center."

On September 10, 1985 the planning board approved the site plan "... with [the] requested variances subject to [sic] conditions." Site plan approval was in addition to the planning board's "recommendation to the zoning board of adjustment that they grant a use variance ... [to] allow all the uses [specified in] ... the zoning ordinance."

It is disputed as to the nature and scope of Novack's application before the zoning board. The zoning board argues that Novack applied for a variance to expand the allowable uses in the NC-zone by eliminating the maximum floor square footage of 10,000 square feet. Novack argues that he did not apply to the zoning board for a variance from the 10,000 square foot-limitation; rather his application was to expand the type of uses contemplated in the shopping center. In any event, on September 12, 1985, by a four-to-three vote, the zoning board denied the application.

Subsequent to the zoning board's denial, Novack modified his proposal by removing the two "legs" which were in the high density zone from the proposal. While not entirely clear from the record, the planning board's determination was not memorialized by resolution until December 17, 1985. The resolution, for the first time, expressly referred to Novack's variance "[t]o permit construction of stores in excess of 10,000 square feet." It recited that "[p]reliminary and final site plan approval is hereby granted with requested variances subject to the following conditions". [Emphasis supplied]. A new public notice of decision was published on April 23, 1986 memorializing the planning board's determination.

At its regular meeting on April 10, 1986 the zoning board authorized its attorney to investigate public complaints that Novack was proceeding to construct the shopping center in violation of the zoning board's September 12, 1985 denial. Its attorney submitted a written report advising it that the planning board acted improperly in that Novack's variance application from the floor square footage requirement was for a special reasons variance which could be granted only by the zoning board.

The zoning board thereupon notified the planning board of the "jurisdictional problem" and requested that they rescind their approval. At its regular meeting on May 8, 1986, the zoning board again considered the matter and decided to defer legal action to permit the planning board to "take remedial action on its own volition." At its next meeting on June 12, 1986, the zoning board authorized its attorney to commence suit. A meeting was held between the respective boards on or about June 24, 1986. According to the zoning board's counsel, the respective boards "agreed to disagree" and allow the matter to be adjudicated in court.

On June 30, 1986 the zoning board's prerogative writs action was filed. The gravamen of the complaint was that the planning board's variance approval to allow stores in excess of 10,000 square feet was, in fact, a special reasons variance under N.J.S.A. 40:55D-70(d) and, since the zoning board had the exclusive power to hear and decide such variances, the planning board approval was a usurpation of the zoning board's exclusive statutory powers. The zoning board, by order to show cause and application for a temporary restraint, sought to enjoin the construction of the shopping center pending the return day of the order to show cause. Novack resisted by filing an affidavit stating that, in reliance on the planning board's approval, he had spent considerable sums in architectural, legal and engineering expenses in obtaining approvals and permits from other governmental agencies.

On the return day of the order to show cause and defendant's motion to dismiss, Judge DeSimone, in a comprehensive and thoughtful opinion, concluded that the zoning board had no standing to institute suit to challenge the actions of the planning board, a co-equal municipal agency. The judge also concluded that the zoning board's delay in instituting the action until after the 45-day limit prescribed by R. 4:69-6 barred the zoning board's action.

On appeal, the zoning board contends: (1) the variance granted by the planning board was a special reasons variance; (2) it has the exclusive power to grant or deny such variances; (3) the planning board's actions were "ultra vires "; (4) it had standing to challenge the usurpation of its exclusive statutory power, and (5) Judge DeSimone erred in applying the 45-day time bar under R. 4:69-6.

We agree with Judge DeSimone that in the circumstances present here, the zoning board had no standing to sue. Preliminarily, it may be that the zoning board is entirely correct in arguing that the variance being sought by Novack here is a special reasons variance, rather than a hardship variance. N.J.S.A. 40:55D-70(d) permits the zoning board to grant a variance to allow a departure from zoning regulations to permit "a use or principal structure in a district restricted against such use or principal structure." The application is to construct stores having greater than 10,000 square feet floor area. The zoning ordinance expressly prohibits stores occupying a floor area in excess of 10,000 square feet in the NC-zone. Thus, it is at least arguable that the application sought relief from the use requirements of the ordinance, rather than the bulk requirements as the latter relate to the physical characteristics of the land. See Irving Isko et als. v. Planning Bd. of Tp. of Livingston, et als, 51 N.J. 162, 173-174, 238 A.2d 457 (1968).

But the nature of the developers' application is not the issue. The threshold question is whether the zoning board had the power to sue when it perceived the planning board's actions as an ultra vires grant of a special reasons variance.

There is no specific statutory authority for the zoning board to sue. The powers of a zoning board are expressly delineated under N.J.S.A. 40:55D-70 and 76. Those powers do not include the right to enforce provisions of the Municipal Land Use Act, or to sue if provisions of the act are violated. The power to enforce the act and any ordinances adopted thereunder is vested exclusively with the governing body and its administrative offices and officers. N.J.S.A. 40:55D-18. The power to sue for violations is given to "... the proper local authorities of the municipality ..." and to an "interested party", but not to the zoning board or any other quasi judicial agency. See ibid. "Interested party" in "a civil proceeding in any court" means:

[A]ny person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or maybe effected by any action taken under this act, or whose rights to use, acquire, or enjoy property under this act, or under any other law of this state or of the United States have been denied, violated or infringed by an action or a failure to act under this act. [ N.J.S.A. 40:55D-4].

Clearly, a zoning board is not an "interested party" under the statutory definition.

Judge DeSimone correctly cited a pre-act decision, Zoning Bd. of Adj. of Green Brook v. Datchko, 142 N.J.Super. 501, 508, 362 A.2d 55 (App.Div.1976) which held that a zoning board had standing to sue for the rescission of a variance because of the applicant's fraudulent misrepresentations to the board. We held that the misrepresentations denied the zoning board "... an opportunity to review all of the facts before determining ... the grant of the variances or the issuance of the certificate of occupancy in the light of proper zoning considerations." Ibid. Judge DeSimone also noted our recent ...