Feller, J.s.c. (retired, temporarily assigned on recall).
[167 NJSuper Page 348] This is an action in lieu of prerogative writs in which plaintiff
appeals the denial of a variance by the Hillside Board of Adjustment. Defendant board denied plaintiff's application for a variance to permit the installation of a drive-up window to facilitate customer service at Gino's fast-food restaurant. Apparently the issues here are of first impression in this State involving certain provisions of the new Municipal Land Use Act. N.J.S.A. 40:55D-1 et seq. Plaintiff contends that it is entitled to a variance because defendant failed to give a decision within 120 days as required by N.J.S.A. 40:55D-73(a) and (b) of the new Land Use Act. Briefs have been filed and oral argument has been heard on plaintiff's motion for summary judgment.
The facts are not in dispute and are essentially as follows: Plaintiff is the owner of property situated at 1480 North Broad Street, Hillside, New Jersey, upon which there is a Gino's restaurant in present operation. Plaintiff wished to add a drive-up window for the convenience of its customers, and applied to defendant building inspector for a permit. The latter declined to issue the permit on the ground that subsequent to the erection of the restaurant the area was rezoned office-commercial. Thus, the restaurant became a nonconforming use.
Plaintiff appealed to the Hillside Board of Adjustment seeking a "Type D" variance from the zoning ordinance. On September 8, 1977 a hearing was held on the application and the variance was denied. Four members of the board voted to deny the applicant the requested variance, two voted against the denial. A written resolution to this effect was adopted, dated January 25, 1978, approximately 139 days later.
On June 8, 1978 an application for a rehearing was granted on the ground that there was sufficient new evidence submitted to constitute a new application. The board heard the application on the same day and denied the variance. On October 18, 1978, about 130 days after the vote was taken, plaintiff again requested a building permit, which was denied. Later a written resolution was adopted by defendant board,
dated November 28, 1978, which is approximately 170 days after the vote was taken.
It appears that on June 8, 1978 three members of the board voted to grant the variance and two members voted to deny it. N.J.S.A. 40:55D-70(d) gives a board of adjustment the power to grant a use variance by the affirmative vote of at least two-thirds of the full authorized membership of the board. This requires five votes. Thus, the application was denied. On June 8, 1978, however, when the final vote was taken, no resolution was acted upon.
"Definitions" N.J.S.A. 40:55D-3 of the Municipal Land Use Act provides that the term "shall" indicates a mandatory requirement and the term "may" indicates a permissive action. See also, § 22-17.1 of the implemented ordinance of the township.
N.J.S.A. 40:55D-10(g) provides that each decision on any application for development shall be in writing and shall include findings of fact and conclusions based thereon. Furthermore, § 22-15.9(a) of the implemented ordinance provides that each decision on any application for development shall be set forth in writing as a resolution of the board, which shall include findings of fact and legal conclusions based thereon. Thus, it is clear that each decision must be in writing -- in the form of a resolution of the board -- which shall include findings of fact and legal conclusions based thereon. This is consistent with the definition of the word "decision," which usually means findings of fact and conclusions of law, which must be in writing and filed with the clerk. Black's Law Dictionary (rev. 4 ed.) 495. See Wilcox v. Sway , 69 Cal. App. 2d 560, 160 P. 2d 154 (D. Ct. App. 1945).
In the present case plaintiff's variance application was an application for development. N.J.S.A. 40:55D-4. See also § 21-3 of the ordinance. This was not acted on in writing in the form of a resolution until ...