On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Michels, Shebell and A. M. Stein. The opinion of the court was delivered by Shebell, J.A.D. Michels, P.J.A.D. (dissenting).
Appellant Preakness Hill, Inc. was granted a "special reasons" use variance by the Wayne Township Board of Adjustment to construct cluster housing on a 4.4 acre site. On appeal by a neighboring property owner, the respondent township council held a de novo hearing based on the record below and voted 4 "yes," 3 "no," 2 absent, on a resolution to reverse the board of adjustment action. Thereafter applicant's attorney advised the council by letter that the vote was insufficient to satisfy the enhanced majority requirement of N.J.S.A. 40:55D-17e and filed this action in lieu of prerogative writ.
The council attempted to schedule a further meeting so that the absent members could vote. When the applicant sought to restrain a further hearing, the parties agreed to an order staying the hearing until the Law Division could rule on the effect of the vote. The trial judge originally found for the applicant, relying on the Law Division opinion in Committee for a Rickel Alternative v. City of Linden, 211 N.J. Super. 79 (Law Div.1986). Before entering formal judgment, he reversed
his decision based upon the Appellate Division's reversal in Rickel, 214 N.J. Super. 631 (App.Div.1987) (an opinion now before the New Jersey Supreme Court on certification (107 N.J. 136)). Plaintiff Preakness Hill appeals the decision of the trial court. The Supreme Court denied appellant's motion for direct certification.
We, the majority herein, disagree with the holding in Rickel and reverse the Law Division's judgment. The simple fact is that the result compelled by Rickel and the dissent herein would result in the reversal of an otherwise valid board of adjustment grant of a variance notwithstanding the failure of the governing body to muster the statutorily required "enhanced majority" vote on the motion to reverse the board's action. Such a decision would fly in the face of clear legislative intent.
A detailed statement of the facts involved in the variance application will serve no useful purpose as there is only a legal issue before us at this time. The question presented concerns the effect of the failure of a governing body to reach an enhanced majority vote on the appeal from the board of adjustment. Is the variance appealed from granted or denied?
The issues in this case are governed by § 17 of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Section 17 is entitled "appeal to the governing body; time; notice; modification; stay of proceedings." Subsection e of § 17 provides:
The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse, remand, or affirm with or without conditions any final action of the board of adjustment.
Subsection c of § 17 provides in pertinent part:
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to subsection i. of section 6 of this act (C. 40:55D-10), unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the board. [Emphasis added].
Under N.J.S.A. 40:55D-3, the term "shall" indicates a mandatory requirement. Thus, § 17c makes it mandatory that the
governing body: (1) hold a hearing; (2) conclude a review of the record in the specified time period, and (3) render a decision. Failure to carry out each of these specified requirements within 95 days constitutes a decision affirming the action of the board.
Appellant contends that a decision was not reached by the governing body within 95 days of the publication of notice of the board of adjustment decision, and therefore, the action of that board should be affirmed. "Decision" is not defined in the Land Use Law. "Decision" is elsewhere defined as a
determination arrived at after consideration of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
A determination of a judicial or quasi judicial nature. A judgment or decree pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. [ Black's Law Dictionary 366 (5th ed. 1979) (Emphasis added)].
Webster's Third New International Dictionary 585 (1976) defines "decision" as
the act of deciding . . . the act of settling or terminating (as a contest or controversy) by giving judgment; a determination arrived at after consideration; settlement, conclusion -- see judgment, precedent, stare decisis; an account or report of a conclusion, esp. of a legal adjudication or judicial determination of a question or cause . . .; an announcement (as of a judge) declaring the winner in a contest; the quality of being decided; prompt ...