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Kozub v. Opt''hof

Decided: August 14, 1981.


On appeal from Superior Court, Law Division, Sussex County.

Botter, King and McElroy. The opinion of the court was delivered by Botter, P.J.A.D.


We granted leave to appeal from an order denying plaintiff's motion for summary judgment. Plaintiff sought judgment declaring that, by failing to adopt a resolution containing findings of fact and conclusions within the time limits provided by N.J.S.A. 40:55D-10(g) and N.J.S.A. 40:55D-73, plaintiff's application for a use variance must be deemed to have been granted by the board of adjustment, despite its unanimous vote denying the application.

For the purposes of this appeal we can abbreviate the factual and procedural history. Plaintiff filed an application with the Vernon Township Zoning Board of Adjustment (board) for a variance from requirements of the zoning ordinance and for site-plan approval to permit the alteration and use of an existing building as a repair shop specializing in front end alignment of motor vehicles. The existing "block" building had been vacant for some eight to ten years. It is located on a lot having frontage of 100 feet and a total area of 25,097 square feet. The building has an area of 2,097 square feet. The property is located in the A-4 zone which permits, among other uses, the retail sale of mercantile goods, provided the area of each building

does not exceed 2,000 square feet. The neighboring properties are largely residential in character and some are wooded. The zone also contains a contractor's business, a restaurant, a fire house, and a gas station.

Plaintiff asserts that he applied for a use variance as well as front yard and side yard variances. The record before us does not contain the application, but it is not needed for the issues on this appeal. The board interpreted the application as one seeking a use variance. After a full hearing on January 2, 1980, the board voted to deny the application. The vote was unanimous. No formal resolution was adopted at that time containing findings of fact or conclusions. However, the minutes of the meeting are extensive and contain much discussion for and against the proposal. Objectors appeared in person and some submitted written statements which were read into the record. Before the vote one board member stated that "the proposal is excellent, however, it is a use variance, the neighborhood people are objecting to it," and therefore he would move to deny the application. The motion carried and ended the matter for the time being. Notice of the denial was published on January 17, 1980 in a local newspaper.

In early March 1980, plaintiff's attorneys asked the board's attorney for a copy of any resolution adopted by the board. A new attorney had been appointed after the January 2, 1980 meeting and he said he knew nothing of the matter. Further inquiries were made and eventually, in late July, plaintiff's attorneys received a copy of a resolution adopted by the board on June 4, 1980. (There is some question raised as to the date of the resolution, but whether it was adopted on May 7 or June 4 would not change the result in this case.) Promptly thereafter plaintiff demanded that defendant, the township building inspector, issue a construction permit on the ground that the board's failure to adopt a resolution within the statutory time limits constituted approval of the application. Defendant's refusal to comply prompted the institution of this action to compel the issuance of a permit.

Plaintiff moved for summary judgment. The Township of Vernon moved to intervene, and defendant moved to compel plaintiff to join the board of adjustment as a necessary party. In court, William Postman, a nearby resident who had vigorously opposed the application, also sought to intervene. Counsel for defendant suggested that plaintiff had a remedy for the variance denial that he had not pursued, namely, an appeal to the township committee. Noting that the time limits and remedy for inaction provided in N.J.S.A. 40:55D-10(g) and N.J.S.A. 40:55D-73 were designed to prevent "dallying" by boards of adjustment, the trial judge held, nevertheless, that plaintiff should have pursued his appeal to the township committee. In the circumstances, plaintiff was given the right to perfect such an appeal within ten days of the entry of the court's order. That time was further stayed by consent pending the outcome of the appeal to this court. The motions to intervene were declared moot by virtue of that disposition.

N.J.S.A. 40:55D-73 provides:

a. The board of adjustment shall render a decision not later than 120 days after the date (1) an appeal is taken from the decision of an administrative officer or (2) the submission of a complete application for development to the board of adjustment pursuant to section 59b. [ N.J.S.A. 40:55D-72] of this act.

b. Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall ...

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