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Lizak v. Faria

Decided: June 19, 1984.


On certification of the Superior Court, Appellate Division, whose opinion is reported at 191 N.J. Super. 10 (1983).

For affirmance as modified -- Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Pollock, J.


This case presents questions concerning the interpretation of certain provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, that pertain to the failure of a board of adjustment to render a written decision memorializing its oral denial of a request for a variance. At issue is whether the statute converts such a failure into a grant of the variance. Also at issue is whether such statutory grants are appealable to the governing body and, if so, the time limits within which an appeal must be taken from such a grant.

The trial court found such statutory grants to be appealable to the governing body. 180 N.J. Super. 248, 255-56 (1981). That court noted that N.J.S.A. 40:55D-17a requires an appeal to be taken within ten days from the date of publication of notice of the board decision. Id. at 256. When, as here, the applicants did not publish a notice, interested parties may appeal within a reasonable time. Id. at 256-58. Furthermore, the court found that the objectors had acted with reasonable dispatch in filing their appeal. Id. at 258. Consequently, the trial court affirmed the resolution of the governing body adopted on appeal that, among other things, reversed the statutory grant of the variance resulting from the inaction of the Woodbridge Township Board of Adjustment (Board).

Although the Appellate Division affirmed the trial court's ruling, it based its decision on the rationale that the Board's oral denial was a timely decision within N.J.S.A. 40:55D-73 and, therefore, that no variance was granted under the statute. 191 N.J. Super. 10 (1983). We granted certification, 95 N.J. 198 (1983).

We hold that under the version of the MLUL that remains in effect until July 1, 1984, the failure of the Board to memorialize its oral denial of the application for a use variance resulted in the statutory grant of that application. Furthermore, we hold that such grants are appealable under the MLUL and that those appeals must be taken within a reasonable time when there is no publication to trigger the ten-day period for appeal. We agree that the objectors in this case acted with reasonable promptness and conclude that their appeal to the governing body was timely. Our decision draws substantially on the reasoning of the Chancery Division and discusses the impact of certain amendments to the MLUL that have been enacted since the date of the Appellate Division decision.


The property that is the subject of this appeal is located in a business (B-3) zone along St. Georges Avenue, in the Colonia section of Woodbridge Township. It is an irregular lot, approximately 211' X 125', and contains a gasoline station as well as a mixed use structure consisting of a real estate agency on the first floor and a second floor apartment, which is occupied by the property owners, Mr. and Mrs. Faria.

The mixture of residential and commercial uses contravenes the ordinance as do certain violations of bulk requirements: the gasoline pumps violate the twenty-five foot front yard set back requirement, and the other uses violate side and rear yard requirements. Nonetheless, the use of the property constitutes a pre-existing non-conforming use.

Five years ago, Mr. Faria, who is a builder, sought to expand the non-conforming use by constructing a 28' X 68' addition to the building (more than double the existing office space). He also sought to install an additional 10,000 gallon storage tank beneath the service station. The proposed expansion would increase from ten to fourteen the number of required parking spaces and reduce the rear yard buffer zone from twenty-five

to five feet. The property abuts a residential zone, and the neighboring properties to the rear are single-family residences.

On June 26, 1979, the Farias applied to the Board for necessary variances. At the hearing on September 6, 1979, the Board received letters from the director of planning and development and the Planning Board recommending approval of the application. However, several neighbors, including Mrs. Lizak, vigorously objected. Mrs. Lizak pointed out that the encroachment of the parking area into the rear yard buffer zone would place blacktop directly beneath her bedroom window. She also testified about unsightly debris the Farias allowed to accumulate on their property. Other neighbors protested about poor drainage from the property, increased off-street parking from the multiple uses, and an increased risk of traffic accidents from the proposed parking arrangements.

Three weeks later, at a public meeting on September 27, 1979, the Board, with one abstention, unanimously voted to deny the variance. The Board, however, never adopted a written resolution memorializing its findings of facts and conclusions as required by N.J.S.A. 40:55D-10g. Nonetheless, the Farias as well as the objectors knew of the oral denial by the Board.

Instead of appealing the denial, the Farias waited until May 1980 when Mr. Faria consulted an attorney about resubmitting the application. Upon discovering that the Board had not adopted a written resolution, Mr. Faria's attorney conferred with the township attorney in June 1980. Relying on Gridco, Inc. v. Zoning Bd. of Hillside, 167 N.J. Super. 348 (Law Div.1979), the two attorneys agreed that the failure to adopt a written resolution converted the Board's vote to deny the variances into an automatic grant.

In Gridco, Inc., the Law Division interpreted three provisions of the MLUL. Id. at 350-52. The first, N.J.S.A. 40:55D-73a, provides:

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.

The second provision, N.J.S.A. 40:55D-73b, states:

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 constitute a decision favorable to the applicant.

The third section, N.J.S.A. 40:55D-10g, provided at the time of the Gridco, Inc. decision that each decision on an application for development, such as a request for a variance, shall be in writing "and shall include findings of facts and conclusions based thereon."

In Gridco, Inc., supra, 167 N.J. Super. at 349, the Board of Adjustment denied a use variance, but failed to adopt a written resolution within 120 days of the date of submission. Because of the failure to adopt such a resolution within the statutory time limits, the Law Division granted summary judgment approving the variance. Id. at 353.

In the instant matter, the Woodbridge Municipal Clerk certified the grant of the variance on July 10, 1980, and on the following day, the Farias obtained a building permit. They began to build on July 21, 1980, and construction proceeded apace. Within a month, the exterior of the building was completed at an estimated expense of $60,000, almost one-half of the estimated total cost of the project. At no time, however, did the Farias or the municipality publish a notice that the failure of the Board to adopt a written resolution resulted in a statutory grant of the requested variance.

Notwithstanding the lack of publication of notice, as the Chancery Division found,

[t]he 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 [Lizak] 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 ...

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