On appeal from the Superior Court, Law Division, Union County, whose opinion is reported at 211 N.J. Super. 79.
Morton I. Greenberg and Gruccio. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before the court on appeal from a decision upholding the granting of a use variance from its zoning ordinance by defendant, City of Linden, to defendant, Supermarkets General Corporation, for construction of a commercial property. Plaintiffs, Committee for a Rickel Alternative and Linden Merchants Association, are objectors to the variance. The question before this court is whether a tie vote of a municipal governing body hearing an appeal under N.J.S.A. 40:55D-17a from the granting of a variance by a board of adjustment under N.J.S.A. 40:55D-70d results in the affirmance or reversal of the grant of the variance. A judge of the Law Division held that the tie vote affirmed the action of the board of adjustment. We disagree and thus reverse.
The facts are not in dispute. The board of adjustment, after public hearings, granted the variance by a majority vote. An appeal was taken under N.J.S.A. 40:55D-17a to the municipal governing body, the city council, which heard the matter on June 18, 1985 and adopted a resolution reciting that five members favored the variance, five opposed and one abstained.*fn1 The resolution then stated:
BE IT FURTHER RESOLVED that action of the City Council must be approved by a vote of 6-5. Since the vote of the Council was 5-5, the appeal of the objectors was not approved.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF LINDEN that the motion to reverse the decision of the Zoning Board of Adjustment fails.
On June 22, 1985 plaintiffs filed this action challenging the resolution and seeking a judgment declaring that the variance "be deemed as a matter of law denied." Subsequently, Linden moved for summary judgment and Supermarkets supported that motion.
After hearing oral argument, the motion judge decided the matter in a written opinion dated January 9, 1986, reported at 211 N.J. Super. 79. He noted that the central fact that there had been a tie vote was undisputed. Id. at 81. He pointed out that under N.J.S.A. 40:55D-17e an affirmative vote of the full authorized membership of the governing body was necessary "to reverse, remand, or affirm" the board of adjustment and thus the section was "silent as to the result" of a tie vote. 211 N.J. Super. at 82. He also noted that prior to its 1984 amendment a tie vote was "an automatic affirmance of the action of the board." Ibid. Compare L. 1979, c. 216, § 11 with L. 1984, c. 20, § 6. He then indicated that actions of a board of adjustment are presumed to be valid, the party "attacking the action of the board has the burden of showing otherwise," and that a board's decision "is presumptively correct and its decision should not be overridden unless there is a clear showing of unreasonableness, arbitrariness or capriciousness of the action." 211 N.J. Super. at 83. He concluded that plaintiffs' argument that Supermarkets had the burden of persuading the council "to vote in favor of the application" must fail as "the burden of proof that the Board of Adjustment acted improperly in granting a variance is on the party challenging the Board's
action." Ibid. On February 3, 1986 the judge entered a summary judgment dismissing the complaint.
We would agree with the motion judge's general statement of the law if he had made it in a case in which he was reviewing a decision of a municipal agency acting on a variance application and was setting forth the guidelines for his decision. See, e.g., Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296-297 (1965). The difficulty with application of the principles he announced here, however, is that the motion judge applied them to define the scope of review by a governing body on an appeal from a board of adjustment. In that situation the Supreme Court in Evesham Tp. Bd. of Adj. v. Evesham Tp., 86 N.J. 295 (1981), held that "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 in the matter subject only to the requirement that its findings and conclusions are supported by the record." Id. at 300. Thus, the Supreme Court rejected the concept that the governing body's power is limited to a consideration of whether the board's action was so arbitrary and capricious as to amount to an abuse of discretion. Ibid.
While Evesham requires us to reject the rationale of the motion judge, it does not necessarily compel us to reverse his result as the issue before us was not decided there. Obviously, the Legislature could provide that regardless of the governing body's function on appeal, an even vote would affirm the board of adjustment as it did prior to 1984. We are satisfied, however, that it is not the Legislature's present intention under N.J.S.A. 40:55D-17e that a ...