[169 NJSuper Page 463] Defendants Samuel, Edith and William Ruggierio are the purchasers of a building in Evesham Township situate within a district zoned exclusively for residential use. Desiring to use the property for office purposes, they applied to the township zoning board of adjustment for a (d) variance. After a public hearing the application was denied. Defendants then pursued their statutory right to appeal from this decision to the governing body of the township. See N.J.S.A. 40:55D-17. Defendant Evesham Township Council, after reviewing the record made below, reversed the board's decision and granted the requested variance. Subsequently, the board instituted this prerogative writ suit alleging that the council's action was arbitrary, capricious and a usurpation of the authority entrusted exclusively to the board by the Municipal Land Use Law.
Motions were made to dismiss the action on the ground that the board of adjustment had no standing. Before these motions were decided the board, apparently by reason of a change in its membership, decided to dismiss the proceedings. A stipulation of dismissal was executed by all parties, but shortly before it was filed Wilbert D. Abele, a member of the board of adjustment, filed an application to intervene as a plaintiff in the proceeding. This application was granted. Leave to appeal that decision was sought from the Appellate Division of this court and denied. Meanwhile, the board of adjustment was dismissed as a party and the standing question became moot.
Cross-motions for summary judgment have been filed, supported by the records of the hearings held below by the board of adjustment and the township council. This matter must be decided on the record below, Kramer v. Sea Girt , 45 N.J. 268, 289 (1965), regardless of the motions for summary judgment. There can be no dispute as to the facts: they are contained in the record before me. Under the circumstances, the matter is ripe for summary judgment. Judson v. Peoples Bank & Trust Co. , 17 N.J. 67 (1954).
The Municipal Land Use Law empowers a board of adjustment to "[g]rant a variance to allow a structure or use in a district restricted against such structure or use in particular cases and for special reasons," N.J.S.A. 40:55D-70(d), unless the grant of such a variance would do substantial detriment to the public good or substantially impair the intent and purpose of the municipality's zoning scheme. N.J.S.A. 40:55D-17(a) provides any "interested party" with an appeal as of right to the governing body from any grant of a (d) variance. The governing body, after according all parties an opportunity to present oral and written argument, is required to decide the appeal based exclusively on the record made before the board of adjustment. Additionally, and only if so authorized by ordinance, "any other final decision of a board of adjustment or planning board on any
other class of applications for development" may be appealed in a like manner to the governing body.
At issue in this case is the denial of a (d) variance by the board of adjustment, followed by a reversal thereof on an appeal to the township council. The appeal was authorized by ordinance, as permitted in the enabling act. Plaintiff contends that the action of the council should be reversed. Consideration of that issue requires a determination of the standard of review to be employed by a governing body in deciding an appeal from the board of adjustment. That standard is not clear from the language of the Municipal Land Use Law; it has not been fixed by any decision of our courts. In this regard, the search is for legislative intent. New Jersey Pharmaceutical Ass'n v. Furman , 33 N.J. 121 (1960). Plaintiff argues that the council may modify or reverse an action by the board of adjustment only when it finds that action to have been arbitrary and unreasonable.
Since the statute does not expressly set forth the standard of review, the township suggests that the applicable standard should be that which was employed by governing bodies in hearing appeals under the old act, N.J.S.A. 40:55-1.19, which granted any person aggrieved by the action of a planning board a right of appeal to the governing body. The latter, upon notice to the parties, conducted a hearing at which all were given an opportunity to be heard. Significantly, this hearing was not restricted to the record made below; the introduction of additional evidence was permitted. See Hamlin v. Matasazzo , 120 N.J. Super. 164, 169-70 (Law Div. 1975). Thus, although the final determination of a planning board triggered a right to appeal, the governing body did not sit as an appellate tribunal; instead, it afforded the aggrieved party a hearing de novo. Here, to the contrary, the aggrieved party is afforded a hearing only on the record below. The suggestion of the township must be rejected; the standard used under the old statute is not apropos.
In the alternative, the township has argued that the standard of review previously employed by the governing body in evaluating a "recommendation" from the board of adjustment regarding a (d) variance application still obtains under the present appellate format. Under the former statute the board of adjustment was permitted only to recommend approval of such variances to the local governing body. This recommendation was supported by the record of the board hearing, a statement of the basic facts as found by the board and the board's ultimate conclusions. See Rogoff v. Tufariello , 106 N.J. Super. 303, 308-309 (App. Div. 1969) certif. den. 54 N.J. 583 (1969). In deciding whether to accept or reject this recommendation, the governing body was restricted to a consideration of the record made below and bound by the findings of the board with regard to the basic facts. See Tomko v. Vissers , 21 N.J. 226, 236 (1956); Rogoff v. Tufariello, supra. However, the recommendation could be rejected if the governing body could reasonably draw different ultimate factual conclusions from the basic facts as found by the board of adjustment. See Monmouth Lumber Co. v. Ocean Tp. , 9 N.J. 64, 75-76 (1952); Rogoff v. Tufariello, supra.
The Supreme Court justified this bifurcated standard of review in the Monmouth Lumber case on the ground that "the power to make new conclusions or to draw new inferences from these facts is incidental and essential to the power vested in the governing body to disapprove the recommendation." Monmouth Lumber Co. v. Ocean Tp., supra at 75-76. In other words, this standard of review was a product of the power delegated by the statute to the governing body. Under the present statute the governing body no longer acts as the final approving authority on recommendations from the board of adjustment but, to the contrary, acts as an appellate body reviewing the final decisions made by boards of adjustment. Hence, the statutory scheme that gave rise to the prior standard of review has been significantly altered by the Municipal Land Use Law.
The appellate process established by the new act is identical with respect to planning boards and boards of adjustment. Nothing in this statutory scheme calls for the creation of a different standard of review for board of adjustment as opposed to planning board decisions. Furthermore, the restructuring of the review process ...