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Whispering Waters Inc. v. Zoning Board

Decided: December 19, 1973.

WHISPERING WATERS, INC., PLAINTIFF,
v.
ZONING BOARD OF THE CITY OF SALEM, DEFENDANT



Horn, A.j.s.c.

Horn

This is an action in lieu of prerogative writs. Plaintiff applied to the Salem City Planning Board for a recommendation to the Salem City Zoning Board of plaintiff's proposed development of certain garden-type, multiple dwelling units. The planning board adopted a resolution recommending unfavorably. Notwithstanding the unfavorable recommendation, plaintiff nevertheless applied to the zoning board for a special exception under section 6:914 of the zoning ordinance. This section reads as follows:

6:914 -- GARDEN-TYPE MULTIPLE DWELLING. The Board of Adjustment may authorize as a special exception, after review by and upon the recommendation of the Planning Board, the erection of a garden-type multiple dwelling or a group of garden-type multiple dwellings in any Residence District. Such dwelling, or group of dwellings as a unit, shall conform with all regulations for the district in which it is located and with all pertinent general regulations of this Ordinance, except those for which the following special regulations shall be substituted * * *.

The zoning board denied the application on the ground that it did not have jurisdiction to authorize the special exception, in view of the unfavorable recommendation of

the planning board. Consequently, it refused to conduct a hearing or permit the taking of testimony, or to otherwise act on plaintiff's application.

Plaintiff asks this court to direct the zoning board to hear and decide its application on the merits thereof.

The parties have agreed that the matter should be decided by me on the allegations of the complaint, as though there were cross-motions for summary judgment.

Defendant contends that the board of adjustment is specifically bound by its authority as set forth in section 6:914 of the zoning ordinance, and that the board may not grant a special exception until two things have occurred: first, a review by the planning board, and, second, a recommendation by that board that a special exception be granted.

Defendant further contends that N.J.S.A. 40:55-39(b) directs that, since the board of adjustment may "hear and decide in accordance with the provisions of any such ordinance" and since the ordinance requires recommendation by the planning board, the board of adjustment is without jurisdiction unless such recommendation of the planning board is forthcoming.

Defendant relies on Schmidt v. Board of Adjustment, Newark , 9 N.J. 405 (1952), for the proposition that the board of adjustment may

Defendant also refers to Verona, Inc., v. Mayor, etc., West Caldwell , 49 N.J. 274 (1967), as holding that the municipality may deny to the board of adjustment ...


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