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Township of Dover v. Board of Adjustment of Township of Dover

Decided: April 19, 1977.

TOWNSHIP OF DOVER, (A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY), PLAINTIFF,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF DOVER, (A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY) AND VILLAGES OF '76, A PARTNERSHIP, DEFENDANTS



Havey, J.c.c., Temporarily Assigned.

Havey

This action in lieu of prerogative writs was instituted by the Township of Dover against its board of adjustment and Villages of '76, a partnership and a property owner within the township.

Defendant developer applied for and received approval from defendant board of adjustment to construct a "cluster" development project consisting of 162 building lots on a tract consisting of 81.47 acres situated in the "rural" zone of the township, as delineated by the Dover Township zoning ordinance. Although such a cluster-residential type development was a permitted use within the zone, variance approval was necessary under N.J.S.A. 40:55-39(c), commonly referred to as a "hardship" variance, since the zone called for 16,000 sq. ft. lots and the project proposed lots of 9,000 sq. ft. In addition developer sought to apply the cluster requirements of the R.200 zone of the zoning ordinance. After public hearings defendant zoning board granted approval by resolution dated November 4, 1976.

It should be noted that all proceedings, notices and determinations made were pursuant to the law in effect prior to the application of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

Defendants moved for summary judgment seeking dismissal of the complaint, arguing that plaintiff, a public body, has no standing to appeal a decision of defendant board. Plaintiff seeks, by cross-motion, judgment setting aside the variance approval, arguing that defendant board usurped plaintiff's legislative powers by granting a variance on a tract of land so large, thereby in effect, "rezoning" the area of the municipality.

Plaintiff municipality without question has a general power to sue and be sued in its corporate name; N.J.S.A. 40:43-1. It is also fundamental that in our State, perhaps more than any other, the prerogative writ has been broadly made available as a comprehensive safeguard against wrongful action. Garrou v. Teaneck Tryon Co. , 11 N.J. 294 (1953); Walker v. Stanhope , 23 N.J. 657 (1957).

The courts have recognized a broad right for the taxpayers and citizens of a municipality to seek review of local legislative action even without proof of unique financial detriment to them. Kozesnik v. Montgomery Tp. , 24 N.J. 154 (1957). The community at large, as well as the individual landowners in the particular use district, have an interest in the security of the zoning plan that may not be arbitrarily set at nought. Beirn v. Morris , 14 N.J. 529 (1954).

Examination of case law prior to the abolition of prerogative writs in our State (N.J. Const. (1947), Art. XI, ยง IV, par. 3) reflects the purpose of the prerogative writ in our judicial system. In Ferry v. Williams , 41 N.J.L. 332 (Sup. Ct. 1879), the court said:

These cases seem to indicate that with us the exception to the rule is extended so far as to justify this court in acting by mandamus, certiorari or quo warranto, at the instance of private persons , for the redress or prevention of public wrongs by public bodies and officers, whose official sphere is confined to some political division of the state, wherever the applicant is one of the class of persons to be most directly affected in their enjoyment of public rights and the public convenience will be subserved by the remedy desired. (at 339; emphasis supplied)

This basic common law rule permitting private citizens to maintain proceedings to correct public wrongdoing has not been extended to give the same redress to public agencies in any reported cases in this jurisdiction.

In our sister state of Connecticut it was held that a zoning officer had the power to appeal ...


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