This is an action in lieu of prerogative writs. The matter is before this court for the purpose of a summary adjudication on the basis of an agreed statement of facts.
Plaintiff is the owner of several lots of land (lots 39 through 68) situated on block 100 in the City of Cape May. This area is zoned R-1, which primarily allows only single-family residential dwellings. Plaintiff intended to build 11 twin houses on these lots but was precluded from doing so due to the present R-1 zoning classification.
On August 2, 1973, at the regular meeting of the Cape May Planning Board, plaintiff requested that consideration be given to the change of block 100 from R-1 to R-3, which change would permit plaintiff to construct the twin houses. At that time, however, the planning board was in the process of reviewing the entire zoning map and plaintiff's request was tabled pending the completion of the review.
On August 2, 1973 plaintiff applied to the building inspector of Cape May for building permits to erect 11 twin houses on lots 39 through 68 of block 100. The total land area covered by these lots is 900' in frontage by 125' in depth. Each twin house was to be built on a lot 80' wide by 125' deep. The building inspector refused to issue the building permits due to the present zoning classification.
On August 14, 1973 plaintiff filed an appeal with the Cape May Zoning Board of Adjustment for a variance under the provisions of N.J.S.A. 40:55-39(c) and (d) to construct 11 twin houses on lots 39 through 68 of block 100. A public hearing was conducted by the board of adjustment concerning this appeal on August 22, 1973.
At the hearing, after allowing plaintiff an opportunity to state specifically what relief he was seeking, the zoning board of adjustment took a short recess to discuss the jurisdictional aspects of the application. Upon the advice of counsel the zoning board unanimously decided that it did not have the jurisdiction or the power to entertain the variance application inasmuch as what was being sought by plaintiff was an amendment to the zoning ordinance and not a variance.
The zoning board was aware of plaintiff's previous request for a rezoning with the planning board and claimed that the relief sought by plaintiff was solely within the province of the planning board. The zoning board therefore declined to make any determination on the variance application and suggested that plaintiff pursue this matter with the planning board and city council. No opportunity was given for anyone present to offer comment on the granting or denial or recommendation or nonrecommendation of the variance application because of the refusal of the zoning board to take jurisdiction in the matter. Plaintiff therefore filed this action.
This matter is now being brought before this court solely for the purpose of determining whether a local zoning board of adjustment can refuse to consider an application for a variance under N.J.S.A. 40:55-39 (c) and (d), claiming
lack of jurisdiction on the grounds that the matter is one exclusively within the jurisdiction of the local planning board.
The issue is apparently a novel one in this State. No case has been found which involves an incident where in similar circumstances a zoning board refused to take any ...