Wood, A.c., J.c.c., Temporarily Assigned.
Thomas O. Marini is the owner of a tract of land containing approximately eight acres, situate on Green Tree Road in the Township of Evesham, Burlington County. The tract is a district designated by the zoning ordinance as an R-1 Residence District. Permitted uses for such district are set forth in section 400 of the ordinance and include among others, the following:
(2) Single-family detached dwelling.
(3) Public, private and parochial education institution
(4) Hospital or sanitarium when authorized as a special exception.
On December 20, 1971 Marini, following proper notice in accordance with N.J.S.A. 40:55-44, made application to the zoning board of adjustment for a variance under N.J.S.A. 40:55-39 (d) to permit the construction on a four-acre portion of said tract of a medical office building capable of accommodating the offices of four doctors. The application was considered by the board of adjustment at its meetings of December 20, 1971, January 17, 1972 and February 21, 1972. At the meeting of February 21, 1972 the board adopted a resolution, incorporating therein findings of fact and conclusions and recommending to the township council that such variance be granted, subject to certain conditions.
The recommendation was presented to the township council and a resolution for the approval of the recommendation was introduced at the meeting of the council held March 21, 1972. It does not appear that defendant Marini had any notice of that meeting. Cf. Reinauer Realty Corp. v. Paramus , 34 N.J. 406, 418 (1961). A very brief discussion followed in which one councilman (plaintiff herein) objected that the recommendation did not disclose the use of the remaining four acres of the tract and, further, that the land would be better used for a public park. The council then voted 4-0 against adoption of the resolution of approval.
By letter dated March 23, 1972, addressed to Jack Higgins, chairman of the zoning board of adjustment, the township clerk advised the board of the action of the council, giving as the "reason for the non-approval" the failure of the board's findings of fact and conclusions of law to "stipulate what the petitioner intends to do or how he intends to use the remaining 4 I/2 acres."
Thereafter, on April 14, 1972, Lee B. Laskin, attorney for the petitioner Marini, addressed to D. Neil Manuel, attorney for the Township of Evesham, a letter pointing out that the variance was only applied for as to four acres of the tract; that the remaining four acres, located in a residential zone, would remain subject to all the applicable restrictions on the use thereof provided by the zoning ordinance. The letter indicated the belief that the action of the council was the result of a "misunderstanding" and requested reconsideration of the matter by the council.
On May 2, 1972 the council, at its regular meeting, considered the above letter. It thereupon by a vote of 3-1 voted to reconsider the "Marini variance," and thereafter, after brief deliberation, voted by the same division to "approve the variance."
Thereafter Marini applied to the township planning board for approval of a subdivision to set off the four-acre tract upon which the proposed building is to be erected. The planning board, on June 11, 1972, approved the application. Cf. Loechner v. Campoli , 49 N.J. 504, 512 (1967).
The present plaintiff, the dissenting member of the township committee, thereupon instituted this in lieu proceeding, seeking to set aside the action of the township council's granting the variance ...