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Lawrence M. Krain Associates Inc. v. Mayor and Council of Township of Maple Shade

Decided: March 10, 1982.

LAWRENCE M. KRAIN ASSOCIATES, INC., PLAINTIFF,
v.
MAYOR AND COUNCIL OF THE TOWNSHIP OF MAPLE SHADE AND ZONING BOARD OF ADJUSTMENT OF TOWNSHIP OF MAPLE SHADE, DEFENDANTS



Haines, A.j.s.c.

Haines

[185 NJSuper Page 337] Prior to the Legislature's adoption of the Municipal Land Use Law, Maple Shade Township adopted a zoning ordinance creating a "weak" zoning board of adjustment. N.J.S.A. 40:55-36-39. On January 7, 1977, after the new law became effective, an amendment to the zoning ordinance was adopted creating a strong board, as required by N.J.S.A. 40:55D-69. The amendment, Ordinance 1976-26, was not filed with the county planning

board, as required in the case of zoning ordinances by N.J.S.A. 40:55D-16, until August 10, 1981, after this litigation commenced. The amendment, after providing for the powers of the board in the language of N.J.S.A. 40:55D-70, stated that "[n]o variance or other relief may be granted under the provisions of Subparagraphs A, B, C or D of this Section." The statutory language, apparently omitted in the drafting of the ordinance, is that "[n]o variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." On September 16, 1981 the township adopted Ordinance 1981-15, amending Ordinance 1976-26 to supply the omitted language, expressly providing that it was retroactive to January 5, 1977. This ordinance was not referred to the township planning board, as required in the case of zoning ordinances by N.J.S.A. 40:55D-1 et seq. for review prior to final adoption. Further, final notice of passage of Ordinance 1981-15 was never published.

Plaintiff owns a lot in Maple Shade Township upon which it seeks to erect a sign, claiming this to be the only possible use for the premises. The proposed sign is larger than that permitted by the municipal zoning regulations, and plaintiff, therefore, applied to the Maple Shade Board of Adjustment for a variance. Its first application, filed on April 17, 1980, sought approval for the erection of a sign with dimensions of 16 feet by 60 feet. A hearing on this application was held on May 14, 1980, resulting in the adoption of a motion to deny the variance. No verbatim record was kept of these proceedings. On August 12, 1980 a formal resolution was adopted memorializing the denial. Plaintiff filed a second application for a variance on June 20, 1980, this time reducing the size of the proposed sign to 14 feet by 40 feet. The hearing on this application, held on July 9, 1980, resulted in a denial of the requested variance, memorialized in a

formal resolution adopted on August 12, 1980. Plaintiff now challenges these denials, claiming the variances should have been granted as a matter of law, arguing in addition that the township's zoning ordinances were and are void and unenforceable.

Plaintiff claims that Maple Shade had no valid board of adjustment in existence at the time of the hearings because Ordinance 1976-26, creating the board, was not filed. The township argues, however, that 1976-26 was not a "zoning" ordinance and was not required to be filed by N.J.S.A. 40:55D-16. That statute, in pertinent part, reads as follows:

The zoning, subdivision, site plan review ordinances or any revision or amendment thereto shall not take effect until a copy thereof shall be filed with the county planning board . . .

Copies of all development regulations and revisions or amendments thereto shall be filed and maintained in the office of the municipal clerk.

The use of the words "zoning ordinances" and "development regulations" appears to make them interchangeable. N.J.S.A. 40:55D-4 defines "development regulations" as:

Thus, a zoning ordinance is a "regulation of the use and development of land." Can it therefore be said that an ordinance which merely creates a board of adjustment is a zoning ordinance?

N.J.S.A. 40:55D-65 sets forth the matters which may be regulated by a board of adjustment. It makes no reference to a board of adjustment. N.J.S.A. 40:55D-69 distinguishes a zoning ordinance from one which creates the board. It provides that "upon the adoption of a zoning ordinance, the governing body shall create by ordinance, a zoning board of adjustment." These boards, under N.J.S.A. ...


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