On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
Deighan, Havey and Muir, Jr. The opinion of the court was delivered by Havey, J.A.D.
Plaintiff Washington Township Zoning Board of Adjustment appeals from a dismissal of its action in lieu of prerogative writs against defendants Washington Township Planning Board, Morris Novack and Robert Pelio. In granting defendants summary judgment, Judge DeSimone determined that the zoning board had no standing to institute the suit. He also concluded that the action was time-barred by the 45-day period prescribed by R. 4:69-6. We now affirm.
Defendant-developer Morris Novack proposed to construct a 155,000 square foot shopping center on an 18-acre tract he owned in Washington Township. The tract is zoned predominantly "neighborhood-commercial" (NC) with the exception of two "legs" extending into the high density-residential zone.
Novack applied to the planning board for site plan approval as well as variances (N.J.S.A. 40:55D-70(c)) including a variance permitting individual stores within the NC-zone in excess of 10,000 square feet each. The relevant portion of the Washington Township ordinance (section 82-73), which sets forth the permitted uses, provides that "no single store shall occupy a floor area in excess of 10,000 square feet." Contemporaneous with his planning board application, Novack applied to the zoning board seeking a limited special reasons variance (N.J.S.A. 40:55D-70(d)) for permission to use two "legs" of the tract
zoned in the highway density for commercial purposes and for a special reasons variance to "enlarge the permitted uses to include all those allowed within the shopping center."
On September 10, 1985 the planning board approved the site plan ". . . with [the] requested variances subject to [sic] conditions." Site plan approval was in addition to the planning board's "recommendation to the zoning board of adjustment that they grant a use variance . . . [to] allow all the uses [specified in] . . . the zoning ordinance."
It is disputed as to the nature and scope of Novack's application before the zoning board. The zoning board argues that Novack applied for a variance to expand the allowable uses in the NC-zone by eliminating the maximum floor square footage of 10,000 square feet. Novack argues that he did not apply to the zoning board for a variance from the 10,000 square foot-limitation; rather his application was to expand the type of uses contemplated in the shopping center. In any event, on September 12, 1985, by a four-to-three vote, the zoning board denied the application.
Subsequent to the zoning board's denial, Novack modified his proposal by removing the two "legs" which were in the high density zone from the proposal. While not entirely clear from the record, the planning board's determination was not memorialized by resolution until December 17, 1985. The resolution, for the first time, expressly referred to Novack's variance "[t]o permit construction of stores in excess of 10,000 square feet." It recited that "[p]reliminary and final site plan approval is hereby granted with requested variances subject to the following conditions". [Emphasis supplied]. A new public notice of decision was published on April 23, 1986 memorializing the planning board's determination.
At its regular meeting on April 10, 1986 the zoning board authorized its attorney to investigate public complaints that Novack was proceeding to construct the shopping center in violation of the zoning board's September 12, 1985 denial. Its
attorney submitted a written report advising it that the planning board acted improperly in that Novack's variance application from the floor square footage requirement was for a special reasons variance which could be granted only by the zoning board.
The zoning board thereupon notified the planning board of the "jurisdictional problem" and requested that they rescind their approval. At its regular meeting on May 8, 1986, the zoning board again considered the matter and decided to defer legal action to permit the planning board to "take remedial action on its own volition." At its next meeting on June 12, 1986, the zoning board authorized its attorney to commence suit. A meeting was held between the respective boards on or about June 24, 1986. ...