This case presents a number of questions about the effect of a statutory grant of a variance by inaction, that is, by failure of prompt board of adjustment decision. Mr. and Mrs. Faria own a mixed-use building in Woodbridge Township. They wished to enlarge the building in a way that would violate dimensional limitations of the zoning ordinance. They therefore applied to the Woodbridge Board of Adjustment for variances from the front, side and rear yard set-back requirements.
The Farias' application was heard by the board on September 6, 1979. Neighbors strongly objected. On September 27, 1979, the board unanimously voted to deny the application. However, it never went on to adopt the statutorily required resolution setting forth its findings of fact and ultimate conclusions.*fn1 In June 1980 communications opened between the Farias' attorney and the township attorney as to the effect of the incomplete proceedings. They agreed that the board's failure to adopt a resolution converted the oral vote to deny into the grant of the variance.*fn2 On July 10, 1980 the municipal clerk certified that a variance had been granted and, on July 11, the municipal construction official issued a building permit. The neighbors knew on July 16 that the permit had been issued. It is unclear whether they knew even earlier that something was amiss. A councilman testified that the most active objecting neighbor communicated her concern to him as early as the July 4 weekend. That neighbor testified she was aware that trees were being felled in early July and knew by July 9 that the Farias had applied for a building permit but had not yet received it.
On July 21 construction began. On August 5 the municipal council retained outside counsel to advise them whether they could entertain an appeal from the result of the inaction of the board. On August 7 the neighbors filed a petition with the council seeking a hearing to determine what could be done. A further communication was sent the council on August 19. Mr. Faria knew in early August that the council had hired an attorney to advise on the matter and that the neighbors were seeking corrective council action. He continued building until stopped by this court on August 20. It is apparent that the neighbors began in late July to seek a way to assert their rights. Without counsel and with conflicting signals from council members and township attorneys, they made a number of false starts. Their activity was not in secret, however. And, it began even before the period elapsed for appeal to the board of adjustment from decisions of the construction official. See N.J.S.A. 40:55D-72(a). In all the circumstances, their activity was reasonably prompt and sufficiently public.
The council properly treated the neighbors' communications as notices of appeal from the "determination" of the board of adjustment and held a hearing in September 1980.*fn3 It denied the variance and adopted a detailed resolution setting forth its reasons.
Now before the court are two consolidated actions. In one of them the Farias seek a ruling either that their variance was not appealable or not appealed in time, or that the Council's denial was arbitrary, or, finally, that their proceeding in reliance upon the apparently regular building permit protects them from untimely later occurrences. The objecting neighbors also brought suit, seeking rulings that their appeal was timely, that the variance was properly denied and that the partial construction must be removed.
An examination of the enabling legislation and local ordinance will help. Before enactment of the Municipal Land Use Law (L. 1975, c. 291; N.J.S.A. 40:55D-1 et seq.) a board of adjustment that failed to act on a variance within 60 days after hearing or 90 days after application was deemed to have denied it.*fn4 N.J.S.A. 40:55-45 (repealed). That rule did little to encourage boards to tackle difficult or controversial applications. Planning board inaction had a different effect. Failure to take action within 45 days of submission of a final subdivision plat constituted approval or, in weak-board municipalities,*fn5 favorable referral to the governing body. N.J.S.A. 40:55-1.18 (repealed). The purpose was to encourage prompt consideration of applications. Of course, an applicant before either board could waive the time limit or agree to an extension.
The Municipal Land Use Law adopted the approval-by-inaction approach for municipal agencies that hear zoning and planning matters. A planning board that fails to grant or deny preliminary approval of a site plan or subdivision within 45 or 95 days, depending on size, is deemed to have granted preliminary approval. N.J.S.A. 40:55D-46(c), 46.1(b), 47 and 48(c). See also § 50(b) as to final approvals. A board of adjustment that fails to decide an application for development or an administrative appeal within 120 days is deemed to have acted favorably on it. N.J.S.A. 40:55D-73(b) and 76(c). A governing body that fails to act within 95 days on an appeal from a use variance grant, or such other appeal as the local ordinance permits, is deemed to have affirmed the board action. N.J.S.A. 40:55D-17(a) and (c). As under earlier law, an applicant can waive or agree to extend the time limits for action.
Appeal to the governing body must be taken within ten calendar days of first newspaper publication of a notice of the
board's decision. The statute makes publication the responsibility of the applicant, unless the local ordinance designates a particular municipal officer to do it. But, the statute makes it clear that such a designation does not bar publication by the applicant. N.J.S.A. ...