On appeal from the Superior Court, Law Division, Ocean County; reported in 149 N.J. Super. 497 (1977).
Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.
The single issue before us is whether a municipal governing body has standing to challenge, by way of an action in lieu of prerogative writs, the grant by the municipality's board of adjustment of a bulk variance on the ground that the nature of the relief afforded by the board is so expansive in nature and impact as to have infringed upon the governing body's exclusive statutory power to zone and rezone. The trial judge, concluding that the governing body has no such standing, granted summary judgment dismissing the complaint of plaintiff Dover Township. See 149 N.J. Super. 497 (Law Div. 1977). We are constrained to reverse.
The meagre record before us includes, unfortunately, neither the municipality's zoning ordinance, its subdivision ordinance, nor its master plan, if any. Nor does it contain either a clear delineation of the size of the municipality in population or in area, or an indication of its land use patterns, actual or proposed. All that the record reveals in this context is that the township has among its various use districts a rural zone and an R-200 zone, in both of which single-family residential use is permitted, the rural zone use, however, being subject to a more restrictive limiting schedule. It further appears that "cluster" residential development*fn1 is permitted in both zones, although, again, the limiting
schedule for the rural zone is the more restrictive requiring, for example, a minimum lot area of 15,000 square feet and a maximum density of .85 lots per acre overall, as contrasted to the R-200 zone cluster requirements of a minimum of 9,000 square foot lots and a maximum overall density of two lots per acre. Neither the size of these zones, nor the nature or extent of their respective development, nor the percentage of total municipal land area each consists of appears in the record.
The controversy here, in this minimal factual setting, arises out of the development plans of defendant Villages of '76 (Villages), a partnership which owns an apparently as yet undivided 81-acre tract in the rural zone of the township. Villages applied to defendant Board of Adjustment of the Township of Dover (board) for a variance pursuant to the then applicable statute, N.J.S.A. 40:55-39(c), in order to develop the tract subject to the limitations applicable to cluster development in the R-200 zone rather than those applicable to such development in the rural zone. That variance would allow the construction of 162 homes rather than the maximum of some 94 homes otherwise prescribed. No objector appearing at the hearing, the board granted the relief sought by resolution which found that "because of the location of the property immediately adjacent to Route 9 and of the neighboring properties it would be unrealistic to expect the property to develop under the provisions of the rural zone for residential homes." The resolution further recited that the "principal [ sic ] of the cluster zoning would best be applied * * * by the reduction of the requirements of cluster zoning to conform with the R-200 zone," and that the relief granted would "conserve a vast amount of open space and provide proper housing for the residents of the Township of Dover." Finally, the resolution concluded, in paraphrase of N.J.S.A. 40:55-39(c), that the property presented "an exceptional situation or condition" which resulted in a "peculiar and exceptional practical difficulties to or an exceptional or undo [ sic ] hardship
upon the owner of such property" and, in the identical verbiage of the concluding sentence of N.J.S.A. 40:55-39, that the negative criteria of nonimpairment of the zone plan and no substantial detriment to the public good were met. The township's ensuing complaint challenging the board's action was, as we have noted, dismissed for lack of standing.
At the outset we note that the board's proceedings were conducted prior to the effective date of the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-1 et seq. , and all parties, as well as the judge, were of the view that the former law, N.J.S.A. 40:55-39, therefore applied. Assuming that view to be correct, we nevertheless conclude that the problem here posed is essentially unaffected and may even have been intensified by the significant changes made by the 1975 act in the variance procedure. The 1975 act retains, in N.J.S.A. 40:55D-70(c) and (d), the two types of variance provided for by N.J.S.A. 40:55-39(c) and (d), respectively, namely the hardship variance of (c), which may afford relief from bulk but not from use restrictions, and the special reason variance of (d), which alone may afford relief from use restrictions. The familiar scheme of N.J.S.A. 40:55-39 was to permit the board of adjustment to act dispositively on the (c) variance, whether by grant or denial, but to accord it only dispositive denial power in respect of the (d) variance, its affirmative action thereon being limited to a recommendation to the governing body, which then had the exclusive authority to grant the relief. The alteration in this scheme effected by the 1975 statute is substantial. First, the board of adjustment has been accorded the power to grant a use variance as well as a bulkhardship variance. Second, its power to grant a (c) variance is limited to those applications in respect of which neither subdivision nor site plan approval is required for ultimate development. Where such approval is required, the planning board has been accorded the exclusive power to grant the (c) variance, but in accordance with the same
standards generally governing such grants by the board of adjustment. N.J.S.A. 40:55D-60. Finally, the governing body is accorded the statutory power, but only if invoked by an interested party, of appellate review of the grant by the board of adjustment of a (d) variance, and is accorded such review jurisdiction over the grant of a (c) variance by the board of adjustment or the planning board, but only if the local ordinance so provides. N.J.S.A. 40:55D-17(a). Thus, whereas under the prior allocation of powers the governing body had no potential opportunity to review a (c) variance but did have direct control over the grant of a (d) variance, under the present statutory arrangement it has the potential opportunity to review board action in respect of both categories of variance but it no longer has a mandated role in the grant of a (d) variance. The problem of an alleged extra-jurisdictional variance grant with which plaintiff was here confronted has therefore not only been unaddressed by the 1975 act but may well be one of greater urgency and frequency thereunder by virtue of the board's present power to grant use variances, a power which is dispositive of the issue if no appeal is taken to the governing body.
With respect to the merits of the standing issue before us we are in full accord with the trial judge's observation that the board of adjustment is an independent administrative agency whose powers stem directly from the Legislature and hence are not subject to abridgement, circumscription, extension or other modification by the governing body. See, e.g., Duffcon Concrete Products, Inc. v. Cresskill , 1 N.J. 509, 515-516 (1949); Tzeses v. South Orange Bd. of Trustees , 22 N.J. Super. 45, 54 (App. Div. 1952), certif. den. 11 N.J. 327 (1952); Piscitelli v. Scotch Plains Tp. Comm. , 103 N.J. Super. 589, 596 (Law Div. 1968); Rogoff v. Tufariello , 106 N.J. Super. 303, 308 (App. Div. 1969), ...