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Illes v. Zoning Board of Adjustment of Township of Edison

Decided: May 9, 1985.

ARTHUR ILLES AND ARLENE ILLES, HIS WIFE; JAMES L. CARTER AND MARY ANN CARTER, HIS WIFE; VICTORIA JERRY; DAVID L. GUSICK AND ELLEN M. GUSICK, HIS WIFE; GEORGE TOTH AND IRENE TOTH, HIS WIFE; GLADYS CHINCHAR; AMERIO BIANCHI AND EMILIA BIANCHI, HIS WIFE; AND JENNIE ILLES, PLAINTIFFS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON; TOWNSHIP COUNCIL FOR THE TOWNSHIP OF EDISON, ANTHONY YELENCSICS, MAYOR; TOWNSHIP OF EDISON; LOUIS CYKTOR, JR.; AND WICK BUILDERS, DEFENDANTS



Conley, J.s.c.

Conley

[203 NJSuper Page 600] This is an action in lieu of prerogative writs challenging the affirmance by the Mayor and Township Council of Edison of bulk and use variances granted by the zoning board of adjustment. Plaintiffs are residents/objectors who own homes near the property in question. Defendants Louis Cyktor, Jr. and Wick Builders (hereinafter referred to as defendants) applied to the board of adjustment for a use variance, several bulk variances, and site-plan approval to construct a three-story office building on the property. The property, consisting of 1.43 acres, is located in a RB (residential) zone. The property is "L" shaped and has frontage on Amboy Avenue, Coral Street and Gross Avenue. Its east and west borders are adjacent to

residential properties. With respect to its present use, there was a home located on the large leg portion of the "L" (Block 730, Lot 22-A) but that became vacant and was finally demolished in the 1960's. Lot 22-A has remained vacant since. The smaller leg of the "L" (Block 730, Lots 1-A, 2, 3, 4, 5 & 6), presently has a residential structure, about which there is little testimony in the record except that it is attractive and that it will be demolished to make room for the office building.

The immediate block within which the property is situated is bounded on the north by Amboy Avenue, on the west by Coral Street, on the south by Gross Avenue, and on the east by Burchard and Norman Streets. It consists entirely of residences, with the exception of a dance studio and a firehouse. The surrounding area has mixed uses, with residences on the opposite side of Amboy Avenue, mixed residential and light industry to the east and light industry to the west and south. The New Jersey Turnpike is a block away to the west.

The matter is presently before the court on a motion for summary judgment filed by defendants and a cross-motion for summary judgment filed by plaintiffs. There are no disputes of fact and the matter is ripe for summary judgment. Judson v. Peoples Bank & Trust Co., 17 N.J. 67 (1954). Although the cross-motion filed on behalf of plaintiffs raises several issues, one of those issues is dispositive of the present proceeding. It involves the proper scope of review of the mayor and township council.*fn1 It is defendants' contention that the 1984 amendments

to N.J.S.A. 40:55D-17(a) and (d) overruled the holding in Evesham Town Board of Adjustment v. Evesham Township, 86 N.J. 295 (1981) concerning a governing body's scope of review on appeals from grants of variances by boards of adjustments.

In Evesham, the Supreme Court held that, as it was then worded, N.J.S.A., 40:55D-17 granted to governing bodies the authority to conduct a de novo review of an appealed board of adjustment's determination. The Legislature, the court stated, "intended that where the action of a Board of Adjustment is challenged on appeal, the governing body is to have authority to make a de novo review of the record established before the Board and reach its own decision on the matter subject only to the requirement that its findings and conclusions are supported by the record." Id. at 301. The fact that the then-existing legislation provided that the governing body's determination be based upon the record presented to the board of adjustment was not considered to be inconsistent with the concept of a de novo review. Ibid.; Kessler v. Bowker, 174 N.J. Super. 478 (App.Div.1979), certif. den. 85 N.J. 99 (1980). "It merely restricts the presentation of evidence to the hearing before the Board of Adjustment. Where the action of a Board of Adjustment is challenged, however, the governing body which is

directly responsible to the citizenry should have the right to apply its own expertise and knowledge of the community and make the final evaluation based on the record created below." 86 N.J. at 301.

At the time Evesham was decided, N.J.S.A. 40:55D-17(a), which governs the types of actions that may be appealed to municipal governing bodies, provided in part that:

[a]ny interested party desiring to appeal the decision of a municipal agency shall appeal to the governing body (1) any final decision of a board of adjustment approving an application for development pursuant to subsection 57d of this act [ N.J.S.A. 40:55D-70], and (2) if so permitted by ordinance, any other final decision of a ...


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