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Morton v. Mayor and Council of Township of Clark

Decided: June 28, 1968.


Civil actions in lieu of prerogative writs.

Feller, J.s.c.


[102 NJSuper Page 87] This is an action in lieu of prerogative writs brought by citizens and taxpayers attacking the issuance of a variance by the Township of Clark permitting the erection of a garden-type apartment house in Clark's R-150 residence zone. The application was made to the board of adjustment under N.J.S.A. 40:55-39(d). The board adopted a resolution setting forth certain facts and recommending to the township council that the variance be approved. The township council having adopted a resolution

approving the variance, an action was instituted by citizens and taxpayers attacking the grant. The landowner, Mabrook Gardens, intervened in that action. The variance was subsequently rescinded by resolution of the township council and the suit of the citizens and taxpayers then dismissed without prejudice.

The landowner thereupon instituted an action in lieu of prerogative writs against the township council attacking the validity of the rescission resolution. During the pendency of that action the court on its own motion reactivated the prior action attacking the validity of the variance. The two actions have been consolidated by order of the court.

The above recited facts call for a determination of the following issues: (1) did the township council have the authority to rescind the already granted variance, and (2) was the variance in the first instance invalid as being arbitrary, capricious and unreasonable?

The validity of the rescinding resolution will first be considered.

While the legal action attacking the grant of the variance was pending, an election was held in the Township of Clark which resulted in a change of membership on the township council. When the new members assumed their office in January 1965, concern was expressed over the variance previously approved for Mabrook. As a result of this concern, the township council indicated a desire to review and reconsider the previously granted variance. Accordingly, the council, after notice to Mabrook, held a public hearing on April 26, 1965 as to why the variance should not be rescinded. It should be noted that this hearing was held a year and a day after the township council had approved the grant of the variance. Mabrook was represented at the hearing. Neither Mabrook nor the council presented any new evidence. Subsequent to this hearing, the 1964 variance was rescinded. As a result of this action, the suit previously instituted attacking the variance was dismissed without prejudice. Mabrook then instituted this suit.

Mabrook contends that defendants mayor and council had no power under N.J.S.A. 40:55-39(d) to reconsider and overturn their previous action in granting a variance. Even assuming such power, plaintiff argues that defendants were without jurisdiction to exercise it because of the already instituted Superior Court action challenging their grant of the variance, or in the alternative, that in exercising this power defendants acted in an arbitrary and capricious manner.

In opposition to these contentions, defendants assert that an overall examination of the laws governing zoning in New Jersey, with particular emphasis on N.J.S.A. 40:55-39(d) indicates that they had power to reconsider their previous decision authorizing the grant of a variance. Furthermore, the institution of a proceeding in lieu of prerogative writs challenging the grant of the variance did not, in defendants' opinion, oust them of their power to reconsider.

Before turning to an examination of the contentions and counter-contentions of the parties, in light of the law applicable to the case, several points are worthy of mention. First, at the time of the oral argument on this matter, it became known to this court that plaintiff had abandoned its contention that it had relied on the initial grant of the variance by defendants to such an extent that the latter was estopped from taking further action on the matter. In view of such abandonment, this matter is no longer before the court. Second, an examination of New Jersey zoning law indicates that this case presents a question of first impression. Finally, the pretrial order lists as legal issues for consideration the validity of defendants' action in rescinding their previous grant of a variance and the question of the application of estoppel to the facts presented. As previously stated, this latter point has been abandoned, leaving only the former for consideration. The issue is whether, on the facts of this case and considering the applicable law, defendants had the power to rescind a previously granted variance.

It is the opinion of this court, for the reasons to follow, that defendants mayor and council had no authority to

reconsider and rescind their previous grant of a variance to plaintiff.

N.J.S.A. 40:55-30 outlines in broad terms the general purposes and powers of a municipality with respect to zoning. Under this carefully conceived statutory scheme it is true, as defendants contend, that the governing body of a municipality is given broad powers to enact zoning ordinances and provide for their enforcement, for the purpose of insuring the health, welfare and safety of a community. However, this broad power is primarily geared to the initial enactment of zoning ordinances and their constant review and updating subsequent to enactment -- a legislative function. The actual task of administering such zoning ordinances once enacted rests in a board of adjustment created by the governing body pursuant to N.J.S.A. 40:55-36.

This power of administration within the confines of the local ordinance is qualified in situations where a party applies for a variance to establish a "use" in an area which excludes such "use." In such a case the board of adjustment has only the power to recommend a variance to the municipal governing body. According to the statutory scheme, if the board makes such a recommendation, then the governing body can act in one of two ways: it can either approve or disapprove. N.J.S.A. 40:55-39(d). If the variance is approved, the applicant is entitled to a permit to establish such a use. If not approved, then the applicant may either drop the matter or appeal the decision of the governing body by filing an action in lieu of prerogative writs within a certain time period. There is no provision in the statutory scheme for the initiation of reconsideration hearings either on the part of the applicant or the municipal governing body. In fact, in an N.J.S.A. 40:55-39(d) situation this court feels that the intention of the Legislature, as exhibited in its statutory enactments was to prevent such reconsideration in view of the availability of a proceeding in lieu of prerogative writs.

In Grogan v. DeSapio, 11 N.J. 308, 322, 323 (1953), the court stated that when a statutory power is exercised

in a manner that could not have been within the contemplation of the Legislature, and produces a result that could not have been foreseen by it, such exercise of power must be restrained within proper bounds by being held void. See also Donohue v. Campbell, 98 N.J.L. 755, 763 (E. & A. 1923). In support of the principle that a statute should not be construed to permit its purpose to be defeated by evasion, see State v. Hand, 71 N.J.L. 137, 141 (Sup. Ct. 1904); Haber v. Goldberg, 92 N.J.L. 367, 374 (E. & A. 1918). Further, in an investigation of the law in this respect, the purpose of the statute must be examined as well as the practical results flowing from its enforcement. McCarter v. McKelvey, 78 N.J.L. 3, 9 (Sup. Ct. 1909), affirmed sub nom. Attorney-General v. McKelvey, 78 N.J.L. 621, 623 (E. & A. 1910). Statutory language is to be construed keeping in mind the context of the whole statute, its purposes, and the circumstances under which the words were employed, giving them their generally accepted meaning unless a contrary intent is clear. This rule would seem to be applicable here in the construction of N.J.S.A. 40:55-39(d).

This court takes the position it does while recognizing fully the doctrine of inherent administrative reconsideration set forth in Mackler v. Board of Education, 16 N.J. 362 (1954). The question in issue in Mackler, was the reopening by a local board of education of disciplinary proceedings against its business manager. The court allowed such reconsideration in the absence of a statute prohibiting it, and in the absence of a final decision by the board. This absence of a final decision seems to have been the key aspect of the case, for the court, quoting In re Plainfield-Union Water Co., 14 N.J. 296, 305, said:

"Administrative determinations are subject to reconsideration and revision by the agency itself, and a rehearing and the taking of new evidence to that end, so long as it retains control of the proceedings and the rights have not vested. ...

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