The previously unexplored issue presented herein is whether the 1984 amendment to N.J.S.A. 40:55D-70(b) of the Municipal Land Use Law (MLUL) altered the standard of judicial review when ordinance interpretation by a board of adjustment is at issue.
Plaintiff, resident of the City of Englewood, filed this in lieu of prerogative writs action challenging an interpretation by the Englewood Board of Adjustment holding that a senior citizen congregate home occupied by six unrelated persons over the age of 65 was a permitted one-family use and not a proscribed rooming house.
Plaintiffs and intervenor assert that the board's ordinance interpretation went beyond its delegated power and is
therefore a purely legal matter which deserves no more than respectful consideration during court review. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96-97 (Law Div.1956); YWCA v. Bd. of Adj. Summit, 134 N.J. Super. 384, 388 (Law Div.1975); United Prop. Owners Assn. of Belmar v. Belmar, 185 N.J. Super. 163 (App.Div.1982), certif. den. 91 N.J. 568 (1982). All the cited cases rested upon either the Municipal Planning Act or the former section of the MLUL each of which limits board of adjustment powers of interpretation to those granted in an ordinance rather than pursuant to the goals of the statute.*fn1 Both contain the following identical language:
Hear and decide, in accordance with the provisions of any such ordinance, requests for . . . interpretation of the map . . . [ N.J.S.A. 40:55-39b] . . . or ordinance [ N.J.S.A. 40:55D-70b; emphasis supplied]
Jantausch and its progeny strictly construed these former statutes by holding that a board of adjustment was confined to a determination that did not go beyond the express words of the ordinance. Even if all the indicia of a proposed use were identical with a stated allowable category, the failure to expressly state the proposed use in the ordinance would deprive the board of final determination. Nothing but a dictionary equivalent was encompassed in their power to interpret ordinances. If the interpretation extended to the question of legislative intent by extrapolation to a related but unexpressed use, the court then had untrammeled power to substitute its judgment for that of the administrative agency. Jantausch, supra; YMCA, supra; United Prop. Owners Assn. of Belmar, supra.
However, in 1984 the Legislature amended the MLUL, N.J.S.A. 40:55D-70(b), to provide as follows:
(b) Hear and decide requests for interpretation of the zoning . . . ordinance . . . in accordance with this act. [Emphasis supplied]
The legislative statement appended to the amendment states its purpose:
to make the power of the board of adjustment to hear and decide requests for interpretation of the zoning . . . ordinance as clearly a statutory power ...