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Patel v. Planning Board of Township of Woodbridge

June 18, 1992

DR. C. PATEL AND AATHMA, INC., PLAINTIFFS,
v.
PLANNING BOARD OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANT



Wolfson, J.s.c.

Wolfson

WOLFSON, J.S.C.

The novel issues of statutory interpretation and application which present themselves in this zoning case arise out of the voting eligibility requirements embodied in the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

In July, 1991, plaintiffs applied to the Woodbridge Township Planning Board for minor site plan approval with ancillary bulk variances to permit a retail store along the southbound frontage of Route 1. At the Conclusion of several public hearings, on December 18, 1991, a motion to approve the application was made and seconded, but failed to garner sufficient votes to pass, resulting in a statutory denial of the application. See N.J.S.A. 40:55D-9 (failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application). Regrettably, no

resolution was adopted that night. Instead, on January 8, 1992, at the Board's annual reorganization meeting, a resolution purportedly memorializing the Board's statutory denial was adopted. Plaintiffs thereafter timely filed their complaint challenging the Board's action.

I. Voting Eligibility

At the court-scheduled pre-trial/case management conference,*fn1 the parties acknowledged that only one of the four Board members who had opposed the application still remained on the Board, and that this Board member failed to vote when the memorializing resolution was presented.*fn2 Instead, the two members who favored approval were directed by the Board's then attorney, to vote on and adopt a contrary resolution of denial.

While N.J.S.A. 40:55D-10g(2) permits the adoption of a memorializing resolution within 45 days of the date at which the board's action was taken, that statute expressly provides that:

Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to section 5 of the act (C.40:55D-9) (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being those members eligible to vote on the memorializing resolution. (Emphasis supplied).*fn3 [258 NJSuper Page 442] The first issue to be resolved is whether the Legislature intended "a majority of such members present" to include a majority of one where, as here, only one member was present. After careful review of the legislative purposes of the Municipal Land Use Law and its voting and eligibility requirements, the Legislature's studied and consistent adherence to majority, special majority, and super-majority votes,*fn4 and its pervasive admonition that a board's failure to decide an application would result in its automatic approval,*fn5 it is clear that the Legislature did not intend to authorize this single Board member to validly adopt a memorializing resolution. Instead, the more logical interpretation of N.J.S.A. 40:55D-10 is that a majority of those who voted in favor of the Board's decision (in this case, against the application) must also be present at the subsequent "memorializing" meeting, and that an agreed upon form of resolution be adopted by a majority of those members. See Committee for a Rickel Altern. v. City of Linden, 111 N.J. 192, 198, 543

A.2d 943 (1988) (hereafter " Rickel ") (language of a statute must be taken in context and statute must be construed in conformity with its objectives); see also, Lizak v. Faria, 96 N.J. 482, 497, 476 A.2d 1189 (1984) (illogical interpretation of Legislative intent to be avoided).

II. The Futility of a Remand

Given the determination that only one eligible voter remains on the Board, and that pursuant to N.J.S.A. 40:55D-10, that member cannot validly adopt a resolution, a remand would be futile, unless some other hearing procedure, ...


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