Feller, J.s.c. (Retired, temporarily assigned on recall).
This matter is before this court on a summary judgment motion made by defendant City of Linden and is supported by arguments made by defendant Supermarkets General. In their brief in opposition to this motion and in oral argument before this court, plaintiffs have, in effect, also requested summary judgment.
The complaint in this matter has been filed on behalf of plaintiffs to declare an application filed by defendant Supermarkets General for a use variance pursuant to N.J.S.A. 40:55D-70(d)
to construct a Rickels' Home Center in Linden, denied as a matter of law because an appeal from the Board of Adjustment to the governing body, City Council, came to a tie vote.
The facts of this case are not in dispute. In early 1985 defendant Supermarkets General Corp. made an application before the Linden Zoning Board of Adjustment for a use variance, pursuant to N.J.S.A. 40:55D-70(d), to construct a Rickels' Home Center in a light industrial zone. A memorializing resolution was adopted by the Board of Adjustment on March 11, 1985. Notice thereof was subsequently published in the Linden Leader on March 21, 1985 by the secretary of the Board of Adjustment. Prior to this publication, on or about March 18, 1985, a Notice of Appeal was filed on behalf of plaintiffs with the Linden City Clerk, pursuant to the provisions of N.J.S.A. 40:55D-17.
Linden City Council held a hearing on June 18, 1985. City Council reviewed the record before the Board of Adjustment and heard oral arguments from attorneys representing the applicant and the objectors. At the conclusion of this hearing, a vote was held; five members of City Council voted to affirm the decision of the Board of Adjustment, five members of the City Council voted to reverse the decision of the Board of Adjustment and one member of City Council abstained. In other words, the vote resulted in a tie.
The oral argument in this case revealed that neither side is questioning the fact that a tie vote occurred. In essence, plaintiffs claim that such a tie vote results in a reversal of the Board of Adjustment's decision and defendants claim that it results in an affirmance of the Board's action.
The statute governing appeals to the governing body from determinations of the Board of Adjustment is N.J.S.A. 40:55D-17. Under section (a) any interested party may appeal to the
governing body of a municipality a grant of a variance by the Board of Adjustment. Section (c) states, in part that:
The governing body shall conclude a review of the record below no later than 95 days from the date of publication of notice of the decision below . . . . unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and to conclude a review of the record below and to render a decision ...