Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.
Plaintiffs appeal from a judgment of the Law Division dismissing their complaint to set aside a variance granted by the Township of Lawrence. The matter is submitted to us on an agreed statement of facts pursuant to R. 2:5-3(c).
Peterson's Nurseries and Garden Markets, Inc. (Peterson) applied to the Board of Adjustment of the Township of Lawrence for recommendation of a variance, pursuant to N.J.S.A. 40:55-39(d), to use its premises for the sale of farm and garden products not produced thereon. The property is located in a residential zone where such use is prohibited. Following a hearing on November 8, 1967 the board adopted a resolution recommending that the variance be granted. The township committee considered the recommendation at a meeting on December 6, 1967 and remanded the matter to the board for the purpose of securing additional evidence as to certain details of the application. The board held a special meeting on January 24, 1968, as a result of which it again adopted a resolution recommending that the variance be granted. At a meeting held on February 7, 1968 the township committee adopted a resolution granting the variance subject to certain conditions.
The conditions set forth in the resolution listed the kind of garden and farm products which the applicant could sell and limited the period of operation from April 1 to November 1 during the daylight hours. They provided for a buffer strip, an area for the storage of products and off-street parking facilities, and prohibited the display of merchandise (other than nursery stock) except within a greenhouse. The resolution required the applicant to eliminate an existing nonconforming garden market use, to obtain from two record property owners a release in recordable form of their interest in that use, and to remove a structure located on the premises. It provided that the applicant would be given 60 days to submit the release to the township attorney, or within the 60-day period to submit evidence of the institution of legal proceedings
to determine the rights, if any, of the other property owners in the nonconforming use.
Plaintiffs, neighboring property owners, were present and represented by counsel at all of the meetings for the purpose of contesting the application, and their objections to the variance were noted. No publication of a notice of the township committee's resolution, provided for under R.R. 4:88-15(b)(3), now R. 4:69-6(b)(3), was ever made.
On March 25, 1968 plaintiffs brought an action in lieu of prerogative writs against the township attacking the grant of the variance. Thereafter the township served a notice of motion, returnable May 3, to dismiss the complaint on the ground that Peterson, alleged to be an indispensable party, had not been joined in the action. The hearing on the motion was carried pending the filing of an amended complaint. On April 22, prior to the hearing on the motion, the township committee adopted a resolution amending the resolution granting the variance to include in the conditions attached to the variance permission to sell one specific item which had been omitted from the list recommended by the board of adjustment.
On May 20, 1968 plaintiffs filed an amended complaint joining as parties defendant the township, Peterson, the board of adjustment and Mark A. Cermele, the township building inspector.
On September 30, 1968, after all defendants had filed their answers, Peterson moved for summary judgment on the ground that the amended complaint joining it as a party defendant had not been filed within the time limited by R.R. 4:88-15(b)(3). After hearing argument the court filed a letter opinion in which it ruled that the township's motion to dismiss the original complaint should be granted because of plaintiffs' failure to join Peterson, an indispensable party, as a defendant, and that Peterson's motion for summary judgment as to the amended complaint should be granted because the amended complaint was not filed within 45 days after plaintiffs knew of the township committee's
action granting the variance. Following the entry of judgment plaintiffs appealed.
Contrary to appellants' argument, we agree with the trial court that Peterson, the successful applicant, was an indispensable party in the action to set aside the grant of the variance. Peterson had a real and substantial interest in the subject matter of the action, and a judgment could not justly be made without adjudging or necessarily affecting his interest. See Allen B. Du Mont Labs., Inc. v. Marcalus ...