The narrow issue presented in this action in lieu of prerogative writs is whether an applicant before a board of adjustment has an absolute right to withdraw a pending variance application, without prejudice, prior to a formal vote thereon.
Plaintiff, Sansone Oldsmobile-Cadillac, Inc. (Sansone) operates an automobile dealership located on Newman Springs Road in the Borough of Red Bank, Monmouth County, New Jersey. In or around 1984, Sansone became the contract-purchaser of a certain tract of land (hereinafter the tract or the premises) consisting of 6.51 acres located almost directly across the street from its car dealership but situated in the Borough of Shrewsbury.
The tract was previously occupied by a supermarket, which was destroyed by fire several years ago. Except for the market's foundation, the premises have since remained vacant.
Sansone proposed to upgrade the tract into an automobile dealership comprising two buildings -- a showroom with offices and a service/parts facility -- together with a parking area, a car storage facility and other related improvements. Appropriate buffers between the premises and the existing residential area were also contemplated.
Under the zoning ordinance for the Borough of Shrewsbury, the tract is located in a "B-2" zone, which permits general businesses of the small neighborhood type but does not allow automobile dealerships.
Accordingly, on June 19, 1984, Sansone applied for preliminary and final site plan approval, use and bulk variances, permission to erect an eight-foot high buffer fence, and approval for an oversized, free-standing sign.
Public hearings were held before the Shrewsbury Board of Adjustment (board) on July 5, August 1, September 5, October 3, and November 7, 1984. The stenographic records of the hearings indicate that virtually the entire length of each board meeting was devoted to the presentation of either Sansone's or the objectors' case with respect to the application.
On December 5, 1984, the board deliberated on the application and apparently decided to deny the variance.*fn1 The deliberations of the board are contained in the minutes of the meeting of December 5, 1984.*fn2 Board Chairman Kroll opened the discussions:
The floor is open as far as the Board members are concerned to a discussion of the application before us and what the feeling of the Board is with respect to the application and what sort of Resolution we should ask our attorney to draw up for us to vote on at our next meeting.
Chairman Kroll then defined the "overriding issue" before the board as "should we grant a use variance for this property." Following a discussion among the board members as to what should be considered on Sansone's application for a use variance, Kroll continued:
[I]t is the sort of thing that there ought to be some real overwhelming reasons, special reasons for doing it which I don't feel were given. There were no real special reasons given as far as why this use should be permitted on this parcel of property in place of the use for which it was zoned other than the arguments that it hasn't sold for that use which is a bit attenuous [sic] because no one ever knows what sort of an offer might have been made.
Board member Clarke then discussed the "pro's and con's" of Sansone's application, whereupon he concluded:
I think if we were to approve this variance we would be hitting a part of our town which is very important and I think that there would be a detrimental effect to that area which I am certainly willing to listen to other Board members positions on this point, I feel this would not be a wise thing to do at this time, to put in the applicant's new car dealership.
Board member Sarpolus agreed with Clarke. Board member Beers agreed with Clarke in large part but added that he did not foresee any more inconvenience -- specifically, the annoyances of traffic and lighting -- presented by the proposed dealership than that presented by a shopping center, the use for which the premises had previously been employed. Nevertheless, he determined that "[t]here is no overriding reason to upset the B-2 [zone]."
Board member McGuire discussed the evidence presented on the application and concluded: "I individually did not find that the applicant made out a case ...