Maurice A. Walsh, Jr., J.s.c.
This is an action in lieu of prerogative writs under R. 4:69-1.
Plaintiffs are challenging the decision of the Weehawken Planning Board granting variances for the conversion of a vacant dye works into a roller rink. The variances were from front yard, rear yard, lot coverage and parking requirements and were in existence as violations prior to the planning board action herein.
Plaintiffs challenge the granting of the variances on the grounds that the hearing was not in compliance with N.J.S.A. 40:55D-10(f), since a verbatim record was not made, and that the planning board abused its discretion in granting the variances.
N.J.S.A. 40:55D-10(f) provides that upon a hearing for development, adoption, revision or amendment of the master plan, "the municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic
means." Centennial Land & Dev. Co. v. Medford , 165 N.J. Super. 220, 231 (Law Div. 1979). There are no cases specifically construing the above provision. However, there is a recent case which construes N.J.S.A. 40:55D-17 which governs appeals to the governing body from decisions of planning boards and boards of adjustment where permitted by ordinance. This case likens the review power of the governing body to the review power of the courts. Evesham Tp. Zoning Bd. v. Evesham Tp. Council , 169 N.J. Super. 460, 468 (Law Div. 1979). The review power of the governing body, like the courts, is based upon the record below, and N.J.S.A. 40:55D-17(b) requires a verbatim recording of the proceedings before the governing body. Evesham, supra at 467, and see Centennial, supra at 231-232.
Therefore, on the above basis, and on the basis that the predecessor provisions of N.J.S.A. 40:55D-10(f)-40:55-1.7, 40:55-1.40, 40:55-25, 40:55-37, 40:55-42-do not require that a stenographic recording be made, this court must find that the Legislature in specifically adding a requirement of a verbatim recording in the revised statute intended it to be strictly adhered to (see N.J.S.A. 40:55-37, construed as not to require a verbatim record by Tomko v. Vissers , 21 N.J. 226, 238 (1956)).
The effect of the planning board's failure to make a stenographic record is clear from case law under the old statute which deals with inadequate records. These cases hold that where an agency record proves inadequate and therefore the reviewing court cannot determine the validity of the agency's action, there must be a remand.
Where the decision by a planning board or board of adjustment denying or granting a variance is challenged, the court's determination as to whether the action "was unreasonable, arbitrary or capricious must be [based upon] what was before the board and not on the basis of a trial de novo. . . before the Law Division." Antonelli v. Waldwick , 79 N.J. Super. 433, 440-441 (App.Div. 1963); Fobe Assocs. v. Demarest , 74 N.J. 519, 527-528 (1977); Kramer v. Sea Girt , 45 N.J. 268, 289 (1965); Wilson v. Mountainside 42 N.J. 426, 442 (1964); Tomko, supra at
241; Miriam Homes Inc. v. Perth Amboy , 156 N.J. Super. 456, 458 (App.Div. 1976), aff'd 75 N.J. 508 (1978); Alperin v. Middletown , 91 N.J. Super. 190, 198 (Ch.Div. 1966); Toutphoeus v. Joy , 81 N.J. Super. 526, 534-535 (App.Div. 1963); Wolf v. Park Ridge , 79 N.J. Super. 546, 551 (App.Div. 1963); Kotlarich v. Ramsey , 51 N.J. Super. 520, 542-543 (App.Div. 1958). See Gougeon v. Stone Harbor , 52 N.J. 212, 220 (1968), rev'd on other grounds, 54 N.J. 138 (1969); Grundlehner v. Dangler , 29 N.J. 256, 270-272 (1959); Weiner v. Glassboro , 144 N.J. Super. 509, 514 (App.Div. 1976), certif. den., 73 N.J. 55 (1977); Kenwood Assocs. v. Englewood , 141 N.J. Super. 1, 4 (App.Div. 1976); Evesham, supra at 468.
The reason for this is that under the Municipal Planning Act judicial review is intended to be a determination of the validity of the agency action, not the substitution of the court's judgment for the agency action. Kotlarich, supra at 542. Because the review must be on the record, it is necessary ...