Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
Plaintiff, the owner of residential premises in Warren Township, installed a 100-foot-high radio tower in his back yard without first having obtained a building permit. Following a municipal court proceeding resulting therefrom, in which plaintiff pleaded guilty to a charge of violating the pertinent local ordinance, plaintiff applied for a building permit. It was denied on the ground that the radio tower was intended to be used by him in part for communicating with his vehicles in connection with the operation of his business, thus constituting a commercial use not permitted in the rural residential zone in which his premises were situated.
Plaintiff then sought a use variance from the board of adjustment, consideration of which was withheld pending his obtaining site plan approval from the planning board of the municipality. Application was made for such approval. A public hearing was held therein, at the conclusion of which the planning board adopted and transmitted to the board of adjustment a resolution approving the site plan. But it also forwarded an unsolicited letter, together with a report from
its planning consultant, recommending that the variance be denied "because of the reasons stated in the letter by John Chadwick [the consultant], especially because the proposed use would constitute a commercial use in a residential zone and could create an unfavorable precedent with reference thereto."
Apparently an appeal was then taken to the township committee, which disclaimed jurisdiction to hear it. This was followed by the filing of a complaint in lieu of prerogative writs, challenging the authority of the planning board to make such recommendation under the local zoning ordinance, and asserting in addition that plaintiff was accorded no opportunity to cross-examine the author of the accompanying report.
After hearing the matter the trial judge entered judgment (1) rescinding the "memorandum recommendation" of the planning board; (2) remanding it to the planning board for the purpose of holding a public hearing thereon upon notice to plaintiff, at which the planning board would present witnesses in furtherance of the recommendation and plaintiff would have full opportunity to cross-examine them, after which the planning board would submit to the board of adjustment such recommendation as it determined to be advisable; (3) retaining as "valid binding action" of the planning board the site plan resolution; and (4) declaring that the planning board "shall have the authority to make non-binding recommendations to the Board of Adjustment concerning required variances when reviewing site plan applications which are subject to variances being granted by the Board of Adjustment." Jurisdiction was retained by the trial court until the expiration of 45 days from the final action of the planning board.
The planning board appealed from that portion of the judgment rescinding its recommendation and remanding the matter for a testimonial hearing. Plaintiff cross-appealed from the portions of the judgment remanding the recommendation to the planning board and holding that the
board had authority to make non-binding recommendations regarding variances when considering site plan applications subject to the granting of such variances. Their respective contentions are these: The planning board argues that (1) it has authority to "make recommendations to a board of adjustment concerning matters which have been referred to [it] pursuant to statute and ordinance," and (2) its action did not deprive plaintiff of due process, so that a remand was not required. Plaintiff asserts that (1) the local site plan ordinance does not grant the planning board the power to make recommendations to the board of adjustment on variance applications, (2) he was denied due process, and (3) the matter should not have been remanded to the planning board by the trial judge.
It is to initially be observed that neither party raises the issue of whether, in view of the remand and retention of jurisdiction by the trial court, the judgment is interlocutory in nature and thus not appealable except by leave granted. R. 2:2-4. In any case, to the extent necessary, we hereby grant such leave nunc pro tunc. R. 2:4-4(b)(2).
Another pertinent comment is that the problem encountered here would have been avoided had the board of adjustment considered and determined the variance application without first requiring site plan approval from the planning board, for a rejection of the variance sought would necessarily have obviated any further need for site plan approval. More to the point, however, is that we recently expressed our disapproval of a municipal zoning ordinance which, in the case of use variance applications, required site plan approval by the planning board as a prerequisite to the hearing and determination of the application by the board of adjustment. Bederson v. Ocean Tp. , 134 N.J. Super. 9 (App. Div. 1975). Site plan approval may, of course, be delegated to a planning board. See ...