Feller, J.s.c. (retired and temporarily assigned on recall).
This is an action in lieu of prerogative writs instituted by the Linden Merchants Association challenging the decision of Linden City Council affirming the action of the zoning board of adjustment approving the site plan application of intervenor-defendant Stiles Circle Associates, a New Jersey partnership.
Stiles Circle Associates (formerly known as G.G.S. Circle Co.) previously obtained variances to use the existing two-story masonry building located at the front of premises commonly known as 1025 West St. George Avenue, Linden, for commercial purposes and to construct and use a one-story masonry building addition to the rear of the existing building for commercial purposes, as well as front- and side-yard setback variances. Said variance application was bifurcated from the site plan application and approved by the board of adjustment and on appeal by the Linden Merchants Association was affirmed
by the city council, and the Law and Appellate Divisions of the Superior Court of New Jersey.
The site plan application was bifurcated from the variance procedure as permitted by N.J.S.A. 40:55D-76(b). After the appeal of the variance had been determined, the board of adjustment heard and approved the site plan application. Plaintiff appealed to city council and after a hearing city council affirmed the board's action in granting the site plan.
However on appeal to this court by plaintiff, counsel for defendant, Stiles Circle Associates, questioned the jurisdiction of city council to hear this appeal. Plaintiff contends that defendant participated in the appeal, consented to the same and, consequently is estopped to deny the jurisdiction of the city council. Defendants contend that plaintiff initiated the appeal to city council and that they cooperated in order to save time in case it was held that the city council did have jurisdiction.
The issues involved are as follows:
1. Did city council properly consider the revised site plan of plaintiff and take the proper action in the vote of city council?
2. Was plaintiff entitled to appeal a site plan approval to city council?
3. Was the city merely gratuitous in permitting the appeal by plaintiff?
Plaintiff contends that the variance portion of the bifurcated proceeding was for a project which was generally described. In order for there to be a complete variance the entire project had to be totally described and set forth on a site plan. Pursuant to N.J.S.A. 40:55D-76(b) the variance in a bifurcated case is "conditioned upon" the subsequent actions of the board of adjustment and the applicant bears the same burden of the "negative criteria" as in the initial portion of the variance hearing.
Plaintiff further contends that this site plan approval is part of a variance proceeding under N.J.S.A. 40:55D-70(d). Plaintiff also states that if it has the right of appeal to city council from a variance proceeding completed at one time, the act of bifurcation does not diminish its right of appeal to question ...