Plaintiffs seek in this action in lieu of prerogative writs to set aside a major subdivision granted by defendant Planning Board of the Township of Little Egg Harbor, to defendants Joseph T. Mezzina, Joseph T. Mezzina Agency, Inc., Pension Trust, Joseph T. Mezzina Agency, Inc., a New Jersey corporation, and Rod Valente and Karen Valente, his wife (hereinafter, the applicants).
Plaintiff Aurentz is a property owner within the township and plaintiff association is a nonprofit corporation made up of a number of residents and taxpayers of the municipality.
On or before September 13, 1978 the applicants filed an application with defendant board for a major subdivision of property known as Block 262, lots 7, 8 and 8F, as designated on the tax map of the Township of Little Egg Harbor. The property consists of 20.5 acres. The application sought a subdivision of the property into 14 individual buildable lots. On September 13, 1978 a public hearing was held on the application. Present during the course of the hearing were six members of defendant planning board, which consisted of a full membership of seven. N.J.S.A. 40:55D-23(a). At the conclusion of the hearing a motion was made to approve the application subject to a report by the board engineer. At the time of roll call vote three of the six members present abstained from voting on the grounds of a potential conflict of interest. The remaining three members voted in favor of the approval. On advice of counsel the application was declared approved and a resolution granting the subdivision was submitted and approved by the board. On September 22, 1978 plaintiffs filed a notice of appeal with defendant township committee under the provisions of N.J.S.A. 40:55D-17 and Ordinance 78-14, seeking a review of the approval given by the board. By way of resolution dated November 21, 1978 the appeal was dismissed by the township committee on the ground that the disqualification of committee members due to conflict of interests precluded the establishment of a quorum to entertain the appeal.
Plaintiffs urge that the votes of the three members of the seven-member planning board did not constitute sufficient affirmative votes to grant the major subdivision approval. N.J.S.A. 40:55D-9 defines the time and place for holding of municipal agency hearings and the manner by which those proceedings should proceed. The term "municipal agency" includes a local planning board. N.J.S.A. 40:55D-5. N.J.S.A. 40:55D-9 reads in part:
"Quorum" is defined in the Municipal Land Use Law as "the majority of the full authorized membership of a municipal agency." N.J.S.A. 40:55D-6. For this board, a quorum would be four members.
Defendants assert that a majority of the full authorized membership for a seven-member board is four and that since more than four members were present, this was a quorum. They reason that the three favorable votes would, therefore, constitute a majority vote of that quorum. In the alternative, defendants argue that the abstentions under the circumstances of this case should be considered as affirmative votes, applying the common law rule in Kozusko v. Garretson , 102 N.J.L. 508 (Sup.Ct.1926).
The nature of abstentions in a vote involving a municipal agency has been treated in different ways at common law. In Kozusko v. Garretson, supra , the court noted the general common law rule that where members of a governing body remain silent during voting, they should be counted with the affirmative votes, except where the nonvoters express themselves as being opposed to the proposition, in which case they should be counted with the negative votes.
A refinement of that principle is found in situations where a statute requires a specific number of actual votes for passage of a proposition. In such a case the proposal does not
carry if a sufficient number of votes can only be mustered by including the abstainers among the affirmative votes. Mann v. Paterson Housing Auth. , 20 N.J. Super. 276 (Law Div.1952).
New Jersey and other jurisdictions have added a further refinement to the common law principle of Kozusko v. Garretson, supra , where the abstention is due to a disqualifying personal or financial interest. In Quinn v. Sea Isle City , 77 N.J.L. 428 (Sup.Ct.1909), the court held that the abstention of a person disqualified due to conflict of interest could not be considered as an affirmative vote. See also, Livesy v. Secaucus , 97 A. ...