On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
[221 NJSuper Page 73] Defendant Eugene Fernicola (Fernicola) is the contract purchaser of premises located at 257 Pompton Avenue in Verona. Fernicola filed applications with defendant Verona Planning Board for conditional use and site plan approvals. The applications identified the proposed use as mixed commercial-residential. At the Board's request, the Verona Construction Code Official reviewed Fernicola's plans and concluded that they would not qualify as a conditionally permitted use.*fn1 The Construction Code Official further advised the Planning Board that Fernicola should either apply for a use variance or appeal his decision. Since a board of adjustment has exclusive jurisdiction to consider both applications for use variances and appeals from decisions of a construction code official, N.J.S.A. 40:55D-70(a) and (d), the thrust of the Construction Code Official's advice was that Fernicola should be required to seek relief from the Board of Adjustment. Instead, the Planning Board asked its own attorney whether Fernicola's proposed use was conditionally permitted. The attorney advised the Board orally at the hearing on the applications that Fernicola's proposed use was a "mixed use" which was conditionally permitted in the zone. The Board then considered Fernicola's applications on
their merits and granted both conditional use and site plan approval.*fn2
Plaintiffs, who are owners of property in Verona, filed an action in lieu of prerogative writs challenging the Board's action. The Planning Board, Fernicola and John Zingali, the record owner of the property,*fn3 were named as defendants. Count I of the complaint alleged that the retail and storage uses of the property planned by Fernicola are not conditionally permitted in the zone. Count II alleged that the Planning Board lacked jurisdiction to grant Fernicola's application, because the Board of Adjustment had exclusive jurisdiction to review the Construction Code Official's decision that the proposed use was not permitted. Count III alleged that Fernicola's request for permission to erect a free standing sign on the premises required a use variance and hence the Planning Board lacked jurisdiction to grant such permission.
After the case was pretried, the parties filed cross-motions for summary judgment. By written opinion dated March 9, 1987, the trial court determined that judgment should be entered in favor of defendants. It held that the memorandum from the Construction Code Official to the Planning Board did not deprive the Board of jurisdiction to decide whether Fernicola's development plan constituted a conditionally permitted use. It further held that the Board had correctly concluded that Fernicola's proposal qualified as a mixed commercial and residential use and hence was a permitted conditional use. Finally, the trial court held that Fernicola's application to construct a free standing sign required only a bulk and not a use variance
and hence was within the jurisdiction of the Board to approve. See N.J.S.A. 40:55D-60.
On appeal, plaintiffs argue that the Board of Adjustment had exclusive jurisdiction to review the Construction Code Official's conclusion that Fernicola's development plans were not a conditionally permitted use and that the Planning Board therefore lacked jurisdiction to consider Fernicola's applications. Plaintiffs also argue that Fernicola's proposed retail and storage uses are not conditionally permitted uses in the zone and hence that he should have applied for a use variance.*fn4 The latter argument turns wholly on an interpretation of the municipal zoning ordinance. It is well established, as stated by Chief Justice (then Judge) Weintraub, that ". . . the interpretation of an ordinance is purely a legal matter as to which an administrative agency has no peculiar skill superior to the courts," Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div.1956), aff'd 24 N.J. 326 (1957). Consequently, "[w]here the issue is thus one of law, the court's duty and authority are not curtailed by the circumstance that the issue happens to reach it via the board of adjustment." Ibid.*fn5 Since the interpretation
of Verona's zoning ordinance is a subject essentially within the province of the courts, we have decided to bypass the question whether the Construction Code Official's interpretation of the Verona zoning ordinance should have been appealed to the Board of Adjustment and to decide the dispositive question of whether Fernicola's development proposal constitutes a conditionally permitted use in the zone.
The applications filed with the Planning Board do not clearly disclose the intended use of the property. Moreover, as noted previously, we have not been furnished with transcripts of the full hearing before the Board. However, an affidavit by Fernicola's counsel submitted to the trial court states that the use will be in part "for the retail sale and service of vacuum cleaners." Fernicola's appellate brief reiterates that he intends to operate a retail store on the premises. Consequently, the question on which the appeal turns is whether a retail store is a conditionally permitted use in the zone where Fernicola's property is located.
The zoning district is designated as "Residential-Office." The only principal permitted use in the zone is one-family residences. The conditionally permitted uses are religious uses, educational uses, public areas, essential services, mixed uses and professional offices. The "mixed uses" conditionally permitted are referred to in the ordinance as "mixed residential and commercial uses." The ...