[162 NJSuper Page 207] Plaintiff has obtained final approval to construct a planned unit development, consisting of 276 apartment units, on 23 acres of land in Evesham Township. A site plan application is pending before the planning board. The township ordinance, apparently pursuant to N.J.S.A. 40:55D-65(b), has established minimum area requirements for dwelling units, namely, 750 sq. ft. for one bedroom units and 1,500 sq. ft. for two bedroom units. The developer
requested a variance from the planning board, lowering these area requirements, a request which that board refused to consider on the ground that it lacked jurisdiction.
Plaintiff then made application to the board of adjustment, requesting a variance under N.J.S.A. 40:55D-70(c). That board held that it lacked jurisdiction to consider a "c variance" (a "bulk" variance), because plaintiff's property was subject to site plan review. Its interpretation of the statute, by reason of the site plan circumstance, was that the variance authority resided exclusively in the planning board. In addition, it suggested, and here argues, that the scope of the requested variance is so broad that its allowance would constitute a usurpation of the zoning power held only by the governing body of the municipality.
A declaratory judgment is now sought in this court by the developer, raising the following novel issues:
(1) Does the planning board have authority to grant a variance from floor area requirements?
(2) Does the board of adjustment have authority to grant the requested variance?
(3) Does the developer's request involve a bulk variance (N.J.S.A. 40:55D-70(c)), or a use variance (N.J.S.A. 40:55D-70(d))?
(4) Is the scope of the relief sought so great that an amendment to the zoning ordinance is required instead of a variance?
(5) May the board of adjustment decline to hear the application on the ground that it lacks jurisdiction?
(6) Are questions of jurisdiction to be resolved by remand to the appropriate municipal board, or by this court after the presentation of evidence?
A. The Powers of the Planning Board
All counsel agree that the best repository for variance power with respect to this application ...