On appeal from Superior Court, Chancery Division, Middlesex County, whose opinion is published in 180 N.J. Super. 248.
Botter, Polow and Brody. The opinion of the court was delivered by Botter, P.J.A.D.
[191 NJSuper Page 13] This is another controversy spawned by the troublesome provisions in the Municipal Land Use Law, L. 1975, c. 291; N.J.S.A. 40:55D-1 et seq., which appellants contend transformed a denial of their variance application into approval by reason of the failure of the Board of Adjustment (Board) to adopt a written memorializing resolution with findings of fact and conclusions. N.J.S.A. 40:55D-10(g); N.J.S.A. 40:55D-73(b); Kozub v. Opt'Hof, 180 N.J. Super. 482 (App.Div.1981), overruling Gridco, Inc. v. Hillside Tp. Zoning Bd., 167 N.J. Super. 348 (Law Div.1979); see Precision Industrial Design Co. v. Beckwith, 185 N.J. Super. 9, 18-19 (App.Div.1982), certif. den. 91 N.J. 545 (1982); Aurentz v. Planning Bd. of Little Egg Harbor, 171 N.J. Super. 135 (Law Div.1979). The opinion in this case, 180 N.J. Super. 248 was delivered by Judge Cohen before our opinion in Kozub, supra, overruled the trial court opinion in Gridco, supra. Notwithstanding that another trial court opinion, Aurentz v. Little Egg Harbor Tp. Planning Bd., supra,*fn1 was inconsistent with the holding in Gridco, the parties in this case and Judge Cohen proceeded on the premise that the Board's failure to adopt a proper resolution memorializing their announced decision denying the variance constituted approval of the variance. In an admirable opinion, Judge Cohen held, however, that such an "approval" was a decision which could be appealed to the municipal governing body under N.J.S.A. 40:55D-17. He also held that the time to appeal does not begin to run until notice of such decision by inaction is published. He qualified this holding by saying that aggrieved parties must nevertheless act within a reasonable time of actual knowledge of approval by inaction, even if notice is not published by the applicant or a municipal officer as required by N.J.S.A. 40:55D-10(i). He concluded that neighboring property owners appealed the statutory grant within time and that the governing body properly
denied the variance, as the Board had done initially, because there was no conceivably valid basis for granting the variance in this case. Accordingly, he ordered appellants to demolish the partially constructed addition to the building on their property. We now affirm. We write briefly to express a different basis for the result and to again urge the Legislature, as we did in Kozub, to consider the need to amend the statute to avoid the parade of horrors which this case typifies.
We will add to some of the facts given in Judge Cohen's opinion in the trial court. Appellants, Manuel and C. Faria (the Farias) were owners of property on which there existed a building used for commercial and residential purposes. The dimensions of the irregular site were approximately 211 feet by 125 feet. The property contained a gasoline station and a two story building, the first floor of which was devoted to commercial use and the second floor to residential use. The structure was nonconforming because it violated front, rear and side yard setback requirements and contained a mixed use. Nevertheless, the Farias filed an application for a variance to construct an addition to the building of irregular shape approximately 28 feet by 68 feet to be used for commercial purposes. They also sought to add a 10,000 gallon underground gasoline storage tank for the service station.
After the application was amended several times to conform with recommendations of municipal officials, a hearing was held by the Board of Adjustment on September 6, 1979. The Director of Planning and Developing recommended approval, noting, among other things, that the installation of the underground storage tank would not affect the nonconforming location of the gasoline pumps and would not affect the appearance of the site. The Planning Board also recommended approval, subject to various conditions and modifications agreed to by the Farias. Nevertheless, at the adjourned Board of Adjustment meeting held on September 27, 1979, the application was denied on motion made and carried unanimously, with one abstention. No reasons were given and no resolution was ever adopted
containing findings of fact and conclusions. The secretary to the Board testified in the trial court that she had begun preparing a resolution and had discussed the matter with the Board's attorney, but nothing was ever done thereafter.
A number of objectors had spoken against the application at the Board hearing on September 6, including respondents Lizak and Solano. They and the Farias knew that the application was denied by the Board at its September 27 meeting. The Farias did nothing thereafter until May 1980, when Mr. Faria prepared to resubmit the application. However, as noted in Judge Cohen's opinion, the Farias and their attorney thereafter took the position that the Board's failure to adopt a resolution with findings of fact and conclusions converted the denial into a grant of the variance. The township attorney agreed. Without published or actual notice to objecting neighbors or the public in general, the Municipal Clerk certified on July 10, 1980 that a variance had been granted, and on July 11, a building permit was issued.*fn2 This municipal action occurred approximately 9 1/2 months after the Board publicly voted to deny the variance. Construction of the addition commenced on July 21, 1980 and continued at a very rapid pace on 6 or 7 days a week until August 17, 1980, when a stop order was issued. The exterior of the building was almost complete by that time, representing a cost of approximately $60,000 of the total estimated cost of the project of approximately $140,000, according to Mr. Faria, who was in the construction business. Respondent Lizak, a neighbor, realized something was amiss in July when she saw the site being cleared for construction. Municipal officials were contacted and the governing body hired an attorney to advise it of the availability of an appeal from the action or inaction of the Board of Adjustment. However, shortly thereafter the council voted to rescind the resolution hiring the attorney. In the meantime
Lizak sent an "appeal letter" to the council on August 7, 1980, and later sent another letter asking that her appeal be heard and that the building inspector issue a stop work order.
An appeal was scheduled before the Municipal Council in September 1980, and notice of the appeal was published by Lizak in a local newspaper. Lizak also started an action in the Chancery Division on August 20, 1980 to restrain the construction and revoke the building permit. The Municipal Council heard the appeal on September 9, 1980 and took testimony similar to that given before the Board of Adjustment. The Farias' attorney did not object to this procedure. The matter was continued thereafter to obtain additional information to clarify the application. Ultimately, on September 30, 1980, the Municipal Council adopted a written resolution denying the application "for a use variance permitting the expansion of a non-conforming use" and reversing the "statutory mandated decision of the Board of Adjustment" which came about by reason of its failure to adopt a formal resolution memorializing its denial of the application.*fn3 The Council's resolution also revoked the building permit previously issued and ordered construction terminated and the demolition of the partially constructed addition. Thereafter, on October 7, 1980 appellants filed an action in the Chancery Division to invalidate the action taken by the Municipal Council. Both actions were then consolidated in the trial court.
N.J.S.A. 40:55D-73(a) provides that a 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 . . . pursuant to [ N.J.S.A. 40:55D-72]." Subsection ...