Breslin, J.c.c. (temporarily assigned).
This is a prerogative writ action by the plaintiffs challenging the validity of Ordinance 7105 adopted by the Mayor and Council of the Borough of Englewood Cliffs on July 15, 1971 and an amendment thereto designated as Ordinance 7201, adopted on February 10, 1972 and readopted on March 23, 1972.
Ordinance 7105, which amended Ordinance 100R, the basic zoning ordinance of said municipality, provided that (1) any application for approval of a commercial site must be filed at least ten days prior to any meeting of the planning board, file a copy of the site plan with the borough clerk and notify all property owners within 200 feet of the proposed site and publish a notice of the hearing at least five days prior thereto; (2) the planning board, after a hearing of said application, shall submit a written report to the mayor and council with its recommendations; (3) the mayor
and council must act on said report within 45 days of the approval or it will be deemed approved as submitted; (4) regardless of the action of the planning board, the mayor and council may grant or deny the issuance of a building permit subject to the requirements of its building code and the planning and zoning ordinances; (5) the planning board may not take action unless a quorum of its members are present; and (6) in any application where the approval of the planning board or a zoning board of the municipality is required a requisite thereto shall be that no taxes or assessments for local improvements are due or delinquent on the property for which any application has been made. Ordinance 7201 merely amended section 3 of Ordinance 7105 by deleting section 3, subparagraph (a), and substituting a new subparagraph (a) to include a requirement that notice of a hearing be given to the applicant at least five days before the date of the hearing by certified mail.
The following exhibits were marked into evidence by consent of the parties: (1) original zoning ordinance; (2) Ordinance 7105; (3) Ordinance 7201 of amending Ordinance 7105; (4) transcript of hearing of mayor and council of July 15, 1971; (5) transcript of mayor and council of March 23, 1972.
The first of the two points raised by the plaintiffs is that there is no statutory authority for a planning board to hold a hearing with notice on a site plan approval, and for a mayor and council to approve or disapprove the recommendations made by a planning board on site plan approvals. They therefore contend that the action of the mayor and council in adopting the ordinance was arbitrary, unreasonable and capricious by casting an undue burden upon those whose applications for commercial site plan approval for proposed projects comply in all respects with the zoning ordinance. Plaintiffs' second point is that the ordinance in question is an unconstitutional delegation of legislative authority because it does not contain sufficient standards.
Plaintiffs concede that N.J.S.A. 40:55-1.13 provides legislative authority for referral of site plan approval to the planning board:
The governing body may by ordinance provide for the reference of any other matter or class of matters to the planning board before final action thereon by any municipal public body or municipal officer having final authority thereon * * *
In interpreting the above statute, the Supreme Court in Kozesnik v. Montgomery Tp. , 24 N.J. 154, 186 (1957), held that the purpose of such a reference "is to insure that the details of the site plan for the authorized use will be such that the operation will not offend the public interest" by subjecting the plan to "the very expertise expected of a planning board," since "it would not be feasible to set forth in the ordinance a set of specific requirements upon which the building inspector could readily grant or refuse a permit." The court went on to state that under the pertinent statutes, the final authority to grant or refuse a building permit can rest either in a building inspector or in the municipal governing body.
The grant of authority in N.J.S.A. 40:55-1.13 does not require that site plan approvals be referred to a planning board. Furthermore, there is no statutory requirement that the authority of a municipal governing body to issue building permits be delegated to a building inspector. See N.J.S.A. 40:87-15. Therefore, a situation in which applications for building permits are passed on only by the mayor and council is consistent with the statute.
Pursuant to the foregoing analysis, the right of the mayor and council to reserve to itself the power to approve or disapprove site plan recommendations is unquestionable. The assertion by plaintiffs that the exercise of this right was a politically motivated attempt by the governing body to usurp the power of the planning Board does not invalidate the ordinance. Plaintiff has failed to ...