On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Antell, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Defendant, Board of Adjustment of the Township of Holmdel, appeals from a judgment of the Law Division determining that the Township retained no zoning jurisdiction over the portion of plaintiff's property located in Holmdel and on which plaintiffs, the owner and potential operator, intended to build a car wash. The parcel in question lies 2/3 in the Township of Hazlet*fn1 and 1/3 in the Township of Holmdel.*fn2 The Hazlet portion is within the Business Highway Zone and comprises an area of 39,700 square feet. The Holmdel portion is zoned residential and contains approximately 17,800 square feet.
In 1962 the adjoining Townships, as part of a comprehensive agreement allocating the assessment of 11 parcels, provided that five parcels were to be assessed by Hazlet (then called the Township of Raritan) and the remaining six by the Township of Holmdel. Not within the resolution itself, but within a premise clause, each municipality noted:
Whereas it is agreed between the respective townships that municipal services should be rendered by the taxing district.
The Townships, however, "resolved" only that the lots be assessed as scheduled. The taxing authority over the lot in question was transferred to the Township of Hazlet.
In 1962 the sole statutes governing municipal agreements concerning property divided by a municipal boundary line were N.J.S.A. 54:4-25 (permitting a municipality to agree that an adjoining municipality assess the entire tract), N.J.S.A. 40:43-72 (permitting municipalities to determine by resolution which municipality should have "sole supervision" of a building or buildings divided by a municipal boundary), and N.J.S.A. 40:43-73 (stating that the supervising municipality was to provide the "same services as are furnished to buildings located wholly
within its boundaries," and further that such municipality would have the "sole power to issue all licenses and permits required for such building or buildings"). These latter statutes were repealed by L. 1979, c. 181 § 3, effective August 29, 1979 (N.J.S.A. 40A:13-30) as part of the revision of the Municipalities and Counties Title of the New Jersey Statutes.
As the property in question was vacant land, N.J.S.A. 40:43-72 and 73, dealing with buildings, had no direct application. However, the Townships' mutual recognition of the duty of the taxing district to provide services appears to have been at least some attempt to transfer the power to supervise the property despite the fact that there were no buildings on the land.
Title 40A revised and updated the repealed statutes in N.J.S.A. 40A:13-19 and 20. N.J.S.A. 40A:13-19 expanded the application of N.J.S.A. 40:43-72 to include "lands and buildings" and permitted the municipalities by resolution to determine "which municipality shall have sole supervision of the lands and buildings." N.J.S.A. 40A:13-20 updated N.J.S.A. 40:43-73. It required the furnishing of uniform services and gave the supervising municipality the "sole power to issue all licenses and permits required for such lands or buildings." The Townships of Hazlet and Holmdel took no action after the passage of these statutes either to expand or retract the powers ceded or obligations undertaken under their earlier resolutions. We cannot discern from this record whether the continued conduct of the municipalities evinced an intention to invoke the broad transfer of rights and obligations encompassed by the revised statutes.
Plaintiffs obviously assumed that Holmdel had retained the power to zone and therefore applied for a variance before the Holmdel Board of Adjustment. After the variance was denied, they instituted an action in lieu of prerogative writs to review the decision. At the pretrial conference, however, the trial judge for the first time raised the issue of whether Holmdel retained zoning ...