[166 NJSuper Page 376] This action in lieu of prerogative writs raises the issue of whether an interested party is entitled to notice of a public hearing held before the governing body
when an unsuccessful applicant appeals from the zoning board's decision pursuant to N.J.S.A. 40:55D-17(a)(2).
Defendant Otto A. Hoever applied to the Jackson Township Zoning Board of Adjustment for a special reasons variance to operate a junk yard on a parcel of land known as block 143, lot 1, Township of Jackson tax map. The property in question is located in the M-1 or light industrial zone which does not permit such a use. Public hearings before the zoning board of adjustment were held on five different dates from November 7, 1977 to March 6, 1978. The zoning board denied applicant's request for a variance by written resolution dated March 6, 1978. Plaintiffs, interested parties as defined by N.J.S.A. 40:55D-4, either personally or through counsel appeared at the zoning board hearings objecting to the application. The transcript reveals that other interested parties appeared and objected but are not party plaintiffs.
Pursuant to N.J.S.A. 40:55D-17 defendant Hoever applied to defendant township committee seeking a reversal of the zoning board's denial. Since no party raised the issue of whether defendant Hoever had the right to appeal it is assumed that he proceeded under subparagraph (2) of N.J.S.A. 40:55D-17(a), which gives anyone the right to appeal "[i]f so permitted by ordinance, any other final decision of a board of adjustment or planning board on any other class of applications for development." It is further assumed that the Township of Jackson had adopted an ordinance pursuant to the Municipal Land Use Law permitting such appeals. See Karas v. Closter Bd. of Adj. , 155 N.J. Super. 39 (Law Div. 1977). On June 12, 1978 defendant township committee held a public hearing on the application, at which time the committee reviewed the transcript of the zoning board, heard and considered arguments presented by the attorney for the applicant and considered certain evidence which was not entered at the hearings before the board. The committee passed a resolution on June 20, 1978 reversing the decision of the zoning board. It is agreed by all parties
that no notice of hearing was sent out by either the applicant or by defendant governing body before its public hearing. Plaintiffs assert that failure to give them, as well as other interested parties who appeared at the zoning board hearings, notice is sufficient reason to declare the actions of the governing body null and void.
Prior to the passage of the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq. , applications for special reasons variances were controlled by N.J.S.A. 40:55-39(d), which reads:
Recommend in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution approve or disapprove such recommendation. * * * *
Notice to all persons within 200' of the property in question was sent pursuant to N.J.S.A. 40:55-44. If the matter was favorably recommended nothing in the statute required the governing body or the applicant to give notice to any person that the governing body intended to act on the board's recommendation. In Sun Oil Co. v. Clifton , 16 N.J. Super. 265 (1951), the Appellate Division held that under the provision of N.J.S.A. 40:55-39(d) the governing body was not required to give notice of or to even have a hearing on the recommendation of a zoning board. The court stated:
In Reinauer Realty Corp. v. Paramus , 34 N.J. 406 (1961), the Supreme Court approached the need for notice and hearing in a different manner. The zoning board favorably recommended a special exception use, as provided under N.J.S.A.
40:55-39(b), to the borough council for the construction of a gasoline station. The council denied the special exception. The Supreme Court remanded the matter to the governing body for the purpose of making specific findings and a statement of reasons on the record for the denial. Although ...