This action in lieu of prerogative writs is an appeal from the decision of the Maplewood Board of Adjustment which granted use and bulk variances permitting erection of a full service restaurant. Plaintiffs, a group comprised of Maplewood residents living nearby to the proposed establishment, contend that the board's decision is void because the procedure there followed was in violation of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (the act).
The specific contention of plaintiffs is that a portion of the final meeting at which the variance was granted was conducted in a private session to which the public was either effectively or completely excluded. Plaintiffs allege that this procedure violates the act.
Defendant board of adjustment (board) and defendant-applicant Lambrou (applicant) have alleged that no private session ever took place; that all deliberations, though not transcribed, were conducted at the public session, and that any nonpublic caucus fell within the attorney-client exception to the act. They also assert that if a private session did occur, nothing transpired within such meeting to constitute a violation of the act.
A complaint in lieu of prerogative writs is a substitute formal writ it replaced. Evans v. Villani , 19 N.J. Super. 86 (App. Div. 1952). When a decision of municipal government is challenged, the substituted writ is that of certiorari, a predominantly appellate form of action. Specht v. Central Passenger Ry. , 68 A. 785
(Sup. Ct. 1908). As a result, the trial judge should generally limit its inquiry to an examination of the full and complete record below. It was to enable such examination that this court permitted the defendants to introduce a transcript of the tape recording made by the Secretary of the Board during the proceedings, particularly that portion of the proceedings which was not recorded by the stenographic reporter.
After careful examination of both of the aforementioned transcripts, this court is able to come to a number of conclusions. First, and most important, it is clear beyond question that at the meeting of September 13, 1977, the same meeting at which the contested variance was granted, the Board did in fact engage in some discussion out of the presence of the public. At that point in the proceedings, the court is forced to rely solely upon the tape-recorded transcript since the stenographic reporter was requested by the Board to cease taking dictation. The stenographic recording was resumed, at the Board's request, at a later point in the meeting. The Board's act of temporarily prohibiting the stenographic recording of its discussion is not in any way violative of the Act. Both the Open Public Meetings Act, N.J.S.A. 10:4-14, and the Municipal Land Use Act, N.J.S.A. 40:55D-9(c) require only the taking of minutes at regularly scheduled board of adjustment meetings and nothing in either act requires that verbatim transcripts be continued without interruption once commenced.
Returning to a consideration of the tape-recorded transcript at the point where the board announced its intention to go into private session, it appears that the decision was motivated by a desire of the board members to consult with legal counsel regarding the power of the board to make modifications in the applicant's proposed site plan. The transcript reveals that for a considerable length of time preceding the decision to retire the board members were locked in an occasionally acrimonious dispute regarding their authority to alter the site plan. The board chairman,
Mr. Benjamin, announced to the audience that the purpose for the private session was to discuss a legal matter with counsel. Upon recommencing the public portion of the meeting the chairman announced to those present that no discussion of the application's merits had been discussed in private.
There is no verbatim record of the conversation which took place at the private session and this court believes that no deliberate attempt to privately discuss the merits of the application was perpetrated by the board. In spite of this belief, it is my opinion that the act was violated when the board retired to a private caucus and, as required by the act (N.J.S.A. 10:4-15(a)), the decision to grant a variance is hereby declared to be null and void.
This decision is arrived at after careful analysis of the language of the act and the expressions of the legislative intent as embodied in the record of public hearings and the Senate and ...