On certification to the Superior Court, Appellate Division, whose opinion is reported at 214 N.J. Super. 631 (1987).
For Affirmance -- Chief Justice Wilentz, and Justices, Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring. O'Hern, J., concurs in result.
We granted certification, 107 N.J. 136 (1987), to determine whether under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -112 (MLUL), a tie vote of a municipal governing body affirms or reverses a grant of a use variance by the board of adjustment. We conclude, as did the Appellate Division, that it constitutes a reversal. We therefore affirm the judgment below.
The facts are undisputed. Defendant, Supermarkets General Corporation (SGC), applied to the Linden Board of Adjustment for a use variance, pursuant to N.J.S.A. 40:55D-70(d), to build a Rickel Home Center in an area zoned for light industrial use. By a five-to-two vote the Board approved the application and subsequently adopted a resolution memorializing that decision.
Plaintiffs, Committee for a Rickel Alternative and Linden Merchants Association, objectors in the proceedings before the Board, took a timely appeal to the Linden City Council, pursuant to N.J.S.A. 40:55D-17. On June 18, 1985, the Council reviewed the record made before the Board and heard the arguments of counsel. At the conclusion of the hearing five members of the Council voted to affirm the Board, five voted to reverse, and one abstained because of a conflict of interest. The Council passed a resolution stating that as a result of the tie vote, the Board's decision granting the variance was upheld.
On July 22, 1985, plaintiffs filed a declaratory judgment action against the City and SGC, seeking judgment, inter alia,
that as a matter of law SGC's application should be deemed denied because of the tie vote. The City, supported by SGC, moved for summary judgment. The trial court considered plaintiffs' responding papers to be a cross-motion for summary judgment, and entered judgment in defendants' favor dismissing the complaint. Committee for a Rickel Alternative v. City of Linden, 211 N.J. Super. 79 (Law Div.1986). Citing a number of cases for the proposition that the Board's action was presumptively valid and should not be upset on appeal unless shown to be arbitrary, unreasonable, or capricious, the trial court concluded that plaintiffs bore the burden of proving, before the City Council, that the Board's granting of the variance was improper. Id. at 83-84. The court further reasoned that an appeal to a municipal governing body is an appellate proceeding, and "the appellant has the burden of convincing the governing body to reverse, remand or affirm the Board of Adjustment's actions." Id. at 84. Inasmuch as plaintiffs did not convince a majority of the Council members to vote to reverse, they failed to meet their burden, and the tie vote resulted in an affirmance of the Board's action. Ibid.
The Appellate Division reversed, concluding that the hearing before the Council was a de novo review on the record made before the Board. Committee for a Rickel Alternative v. City of Linden, 214 N.J. Super. 631, 635 (1987) (citing Evesham Township Zoning Bd. of Adjustment v. Evesham Township Council, 86 N.J. 295, 300 (1981)). The court below therefore rejected the trial court's reasoning that the Council's review was limited to a determination of whether the Board's action was arbitrary, unreasonable, or capricious. Ibid. In the Appellate Division's view, the de novo nature of the Council proceedings meant that the Board's action was not entitled to a presumption of correctness, id. 214 N.J. Super. at 638, and that SGC, as an applicant seeking relief from a public body, "had the burden to convince the council that it was entitled to the variance." Id. at 636. The Appellate Division therefore held that a tie vote by the governing body results in a reversal of
the Board's action, a result the court deemed consistent with the purposes and provisions of the MLUL. See id. at 635-38. The court reversed and remanded the matter to the Law Division for entry of judgment in favor of plaintiffs invalidating the Council's resolution on procedural grounds. The judgment was without prejudice to SGC's right to challenge in another proceeding the merits of the Council's failure to approve the variance. Id. at 638-39.
In addition to granting SGC's petition for certification, we granted leave to the New Jersey Institute of Municipal Attorneys and the League of Municipalities to appear as amici. Our affirmance of the judgment below is substantially for the reasons stated by the Appellate Division, to which we add the following observations.
This appeal turns on the effect of amendments to the MLUL enacted by L. 1984, c. 20. Prior to the adoption of those amendments, N.J.S.A. 40:55D-17(e) provided that "[t]he affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse, remand or modify any final action of either [the planning board or the board of adjustment.]" L. 1975, c. 291, § 8. Under that provision, then, a tie vote by the governing body would have resulted in an affirmance of the action taken by the Board of Adjustment, a majority vote being necessary only to "reverse, remand or modify" the board's action. As amended by L. 1984, c. 20, § 6, however, N.J.S.A. 40:55D-17(e) now provides that "[t]he 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 ...