On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels and Dreier, JJ. Dreier, J.A.D.
Defendants, Grimaldi and Grimaldi, Trustees, (Grimaldi) appeal from the reversal by the Law Division of the grant of bulk variances and a site plan approval by the Saddle Brook Zoning Board of Adjustment. The trial court determined as a matter of law that the Board of Adjustment lacked the power to issue the variances and site plan approval under the Municipal Land Use Law, N.J.S.A. 40:55D-70 d. We disagree with this interpretation of the law, and therefore remand for consideration of the merits of the zoning appeal, which were not reached by the trial judge.
Grimaldi, the owner of Lot 3, Block 45 on the tax map of the Township of Saddle Brook, applied to the Board of Adjustment for a variance to erect a one-story, 6,300 square foot building for storing non-ferrous metal, with ten off-street parking spaces on this 10,000 square foot lot. The Board of Adjustment determined that a use variance was unnecessary, although the same had been applied for, but then retained jurisdiction and granted various bulk variances subject to conditions concerning front,
sideline and rear line setbacks, site plan approval and approval of other appropriate agencies and a prohibition against outside storage. On July 6, 1981, ten days after publication of the Board's final decision, plaintiffs (adjoining property owners) appealed to the mayor and council, and a month later filed a complaint in lieu of prerogative writ seeking to set aside the grant of the variance. While this appeal was pending, but prior to the pretrial conference, Grimaldi applied for a further variance concerning off-street parking, and in addition sought final site plan approval. On February 4, 1982, the Zoning Board granted Grimaldi's variance (nine off-street spaces rather than thirteen), and also gave Grimaldi preliminary site plan approval, subject to certain conditions. Thereafter, on April 1, 1982, the Board granted final site plan approval, whereupon plaintiffs amended their complaint before the Law Division to include a second count seeking reversal of the site plan approval.
The case was tried on June 15, 1982, and on June 30, 1982 the trial judge rendered his oral determination setting aside the Zoning Board's grant of the variance and site plan approval on the basis that application should have been made to the Planning Board in that the Board of Adjustment lacked jurisdiction.
The issues implicated in this case involve the basic structure of the variance process under the Municipal Land Use Law and present a case of first impression as to the grant of bulk variances and site plan approval by a Board of Adjustment. The trial court stated in its final judgment that:
The court thus determined that a bulk variance as opposed to a use variance was not properly cognizable by the Board of
Adjustment under N.J.S.A. 40:55D-70 d, but rather had to be heard by the Planning Board under N.J.S.A. 40:55D-70 c.
The language of N.J.S.A. 40:55D-70 d gives a board of adjustment the power to "[i]n particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act, including, but not limited to, allowing a structure or use in a district restricted against such structure or use . . ." [Emphasis added]. The language of this section, which expands the jurisdiction beyond the simple use variance previously permitted, was added by L. 1979, C. 216 § 23, and that legislation was accompanied by a Statement which provided that subsection d was amended in order to "clarify that 'd' variances can be granted for bulk restrictions for the special reasons defined ...