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Mercurio v. DelVecchio

November 14, 1995

ELEANOR MERCURIO, TOM AND DIANE ALLEN, PAUL AND CATHY NOVITCH, AND RALPH J. SALERNO, PLAINTIFFS-APPELLANTS,
v.
RICHARD DELVECCHIO, JR., AND BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BLOOMFIELD, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court, Law Division, Essex County.

Approved for Publication November 14, 1995. As Corrected February 6, 1996.

Before Judges Petrella, Skillman *fn1 and Eichen. The opinion of the court was delivered by Petrella, P.j.a.d.

The opinion of the court was delivered by: Petrella

The opinion of the court was delivered by PETRELLA, P.J.A.D.

Plaintiffs Eleanor Mercurio, Tom and Diane Allen, Paul and Cathy Novitch, and Ralph J. Salerno, appeal from a judgment entered by the Law Division, upholding the grant of a variance to defendant Richard DelVecchio, Jr. by the Board of Adjustment of the Township of Bloomfield (Board) and dismissing their complaint in lieu of prerogative writ.

DelVecchio applied on November 20, 1992 for the expansion of his nursing home pursuant to N.J.S.A. 40:55D-70(d)(2). Plaintiffs were objectors to DelVecchio's application for a variance to expand a nonconforming use in a residential zone. Originally, DelVecchio wanted to add a second-story addition to the rear of the building that had been converted to a nursing home in 1949 and a twelve-foot by twenty-four-foot addition to the garage. He also sought site plan approval. Public hearings were held on December 10, 1992, and February 11, March 11, and April 8, 1993. On April 8, the Board, by a vote of 6-1, adopted a resolution granting the variance to permit only the addition of rooms for two patients, subject certain restrictions, but denied the application for an addition to the garage.

On appeal, plaintiffs argue that the Board improperly allowed a newly appointed member, who had not participated in the first of three Board meetings, to participate and vote in the Board's action in granting the variance. They assert that such improper participation tainted the decision. They also argue that the Board's refusal to adjourn the third of four hearings because one of the objectors was ill was reversible error. Finally, they maintain that the granting of the variance was arbitrary, capricious, and unreasonable.

We address initially the issues involving participation by the newly appointed member and the refusal to adjourn the third hearing date due to the illness of an objector.

I.

For the variance involved in this case to be granted, at least five out of the seven members of the Board had to vote in favor of the variance. N.J.S.A. 40:55D-70(d)(2). The Board approved the variance by a vote of six-to-one, the challenged member being one of the six.

Following the first hearing on December 10, 1992, but before the second hearing of February, 1993, Steven Sefcik was appointed to the Board. Although he had not attended the first hearing, Sefcik attended all subsequent hearings. Sefcik indicated on the record and certified in writing that he had listened to the tapes of the December 10 meeting. *fn2 Over the objection of Mercurio's attorney, Sefcik was allowed to participate in the hearing.

N.J.S.A. 40:55D-10.2 provides:

A member of a municipal agency *fn3 who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such board member has available to him the transcript or recording of all of the hearing from which he was absent, and certifies in writing to the board that he has read such transcript or listened to such recording.

Although the statute does not address any distinction between current members and newly-appointed members, two Law Division decisions have considered the matter and arrived at contrary Conclusions. Compare Patel v. Planning Bd., 258 N.J. Super. 437, 609 A.2d 1319 (Law Div. 1992) (new member is not considered a "member" under section 10.2 and, therefore, is not allowed to participate) with Lawrence M. Kairn Assocs. v. Maple Shade ...


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