[174 NJSuper Page 549] In this action in lieu of prerogative writs plaintiff James Seibert seeks a reversal of defendant Dover Township Zoning
Board of Adjustment's denial of a special reasons variance application for the construction of 44 townhouses on property located in Dover Township, Ocean County, New Jersey. Plaintiff argues that he met all of the statutory criteria under N.J.S.A. 40:55D-70(d) to support his application. He asserts that defendant board's actions were arbitrary and were based on consideration not properly before the board. In particular he relies upon the submission in evidence of a written petition signed by over 200 persons opposing his application as evidence of the board's arbitrariness. That petition set forth six reasons why the plaintiff's application should be denied. The six reasons were:
(1) Multi-family use dwellings are not permitted in this zone.
(2) The increased number of units to be developed as a result of this variance is counter to the established use of this land and its aesthetic character.
(3) One-acre zoned single-unit land should not be converted to multi-family condominiums.
(4) We reside in close proximity to this proposed development, and such a project would decrease our property values, as has happened in similar developments in surrounding communities.
(5) The density of the population that would result is higher than allowed in this zone.
(6) Condominium units, unless specifically senior citizen developments, have had a history of rental-investment conflict and suburban blight in parts of Ocean County.
The propriety of the board's acceptance of the petition as part of the record is raised as the primary issue for disposition by this court. This question must be resolved before the court considers the substantive issues involved in this special reasons application.
Prior to the adoption of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. , the procedural criteria for regulating a hearing before a zoning board of adjustment were contained in N.J.S.A. 40:55-37 and N.J.S.A. 40:55-38. These sections lend no guidance in determining whether a board could hear and decide a case on evidence ordinarily not admissible under rules of evidence. In Kenwood Assoc. v. Englewood Bd. of Adj. , 141 N.J. Super. 1 (App.Div.1976), the court stated:
Boards of adjustment are not controlled by the strict rules of evidence and procedure applicable to courts. See Kramer v. Sea Girt Bd. of Adj., supra , 45 N.J. at 284. Hence, even if the evidence would not be normally admissible in a formal judicial proceeding, its admission in a board of adjustment hearing cannot impair the validity of ...