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Harry Grant Center Corp. v. Mayor and Council of Borough of Fort Lee

Decided: August 14, 1989.

HARRY GRANT CENTER CORP., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE AND THE CONSTRUCTION OFFICIAL OF THE BOROUGH OF FORT LEE, DEFENDANTS-APPELLANTS, AND MICHAEL INGANAMORT, MICO, A NEW JERSEY PARTNERSHIP, AND METROPOLITAN LIFE INSURANCE COMPANY, INTERVENORS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

This is an appeal by defendant Mayor and Council of the Borough of Fort Lee (Mayor and Council) from a determination by the Law Division that the Mayor and Council did not have jurisdiction to hear and decide an appeal by objectors*fn1 to a use variance granted by the Board of Adjustment (N.J.S.A. 40:55D-70d; N.J.S.A. 40:55D-17a). We reverse and remand.

Plaintiff Harry Grant Center Corp. (Grant) owns certain property in the Borough of Fort Lee, located partly in a C-3 zone, a commercial zone where high-rise office buildings are permitted but residential use is prohibited, and partly in an R-5 residential zone, which permits garden-type apartments. Grant proposed to erect a 28-story condominium apartment complex entirely on the portion of the property in the C-3 zone. When the construction official denied Grant's application because it did not conform to the Borough's zoning ordinance, Grant appealed to the Board of Adjustment (Board). After several hearings, the Board unanimously granted site plan approval on February 2, 1988, including a use variance pursuant to N.J.S.A. 40:55D-70d and other related bulk variances.

Intervenors Michael Inganamort, Mico, a New Jersey partnership, and Metropolitan Life Insurance Company (objectors or intervenors) who had objected to the application before the Board, filed a notice of appeal on January 14, 1988, with the

Mayor and Council. After a hearing on March 7, 1988, the Mayor and Council adopted a resolution on March 10, 1988, reversing the Board and denying Grant's application.

On March 31, 1988, Grant filed a complaint in lieu of prerogative writs*fn2 against the Mayor and Council and the construction official seeking a judgment, either declaring the resolution of the Mayor and Council adopted on March 10, 1988 null and void or, in the alternative, declaring said resolution to be an affirmance of the action of the Board and directing the construction official to issue necessary permits for construction. Process was by order to show cause, and the matter was ultimately heard by the Law Division on May 10, 1988. In addition to Grant and defendants Mayor and Council, the objectors were also represented by counsel and presented oral argument.*fn3

After oral argument on May 10, 1988, the Law Division concluded that the Mayor and Council were without jurisdiction to hear Grant's appeal and entered a judgment on May 24, 1988 declaring the resolution adopted by the Mayor and Council on March 10, 1988, null and void and of no effect for the reasons set forth in its oral opinion. Following Tucci v. Borough of Moonachie, 220 N.J. Super. 280 (Law Div.1987), the trial judge concluded that the Mayor and Council lacked jurisdiction because it had not adopted an ordinance after the amendment of N.J.S.A. 40:55D-17a by L. 1984, c. 20, § 6. This amendment limits appeals to the governing body from a final decision of the

Board of Adjustment approving a variance pursuant to N.J.S.A. 40:55D-70d to those municipalities which permit such appeals by ordinance.

As originally enacted in the Municipal Land Use Law, N.J.S.A. 40:55D-17a read in pertinent part:

a. Any interested party may appeal to the governing body (1) from any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act, [40:55D-70d] and (2) if so permitted by ordinance, any other final decision of a board of adjustment or planning board on any other class of applications for development.

By L. 1979, c. 216 § 11, this section was amended to read as follows:

a. Any interested party desiring to appeal the decision of a municipal agency shall appeal to the governing body (1) any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act, [40:55D-70d] and

(2) if so permitted by ordinance, any other final decision of a board of adjustment or planning board on any class of applications for development.

By L. 1984, c. 20 § 6, this section of N.J.S.A. 40:55D-17a was finally amended to read:

a. Any interested party may appeal to the governing body any final decision of a board of adjustment approving an application for development pursuant to subsection 57d. of this act [40:55D-70d] if so permitted by ordinance.

After the Legislature enacted the Municipal Land Use Law by L. 1975, c. 291, which became effective on August 1, 1976, the Mayor and Council adopted an ordinance in 1977, including a section concerning appeals from the Zoning Board of Adjustment to the Borough Council, which provides in pertinent part:

17-4.2 Appeals from Zoning Board of Adjustment to Borough Council

a. Any interested party may appeal to the governing body any final decision of the board of adjustment granting a variance pursuant to ...


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