On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5188-07.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
At issue is whether seven or nine members of a planning board, when acting as a board of adjustment pursuant to N.J.S.A. 40:55D-25(c), may vote on a "d" variance application under N.J.S.A. 40:55D-70(d).
If, indeed, only seven members may vote, we then must decide whether, under the facts in this case, the defendant Board abused its discretion in denying the application for a "d" variance.
The voting question arises from the intersection of N.J.S.A. 40:55D-70(d), providing that five votes are needed to approve a "d" variance, and N.J.S.A. 40:55D-25(c), allowing a nine member municipal planning board to serve as a board of adjustment even though municipal boards of adjustment created pursuant to N.J.S.A. 40:44D-69 have seven members. After analyzing the statutes in light of the Legislature's intent, we conclude that when a "d" variance application comes before a planning board serving as a board of adjustment pursuant to N.J.S.A. 40:55D-25(c), the Class I and Class III members, who are prohibited by the statute from considering the application, may not be replaced by alternates. As a result, a board will be reduced to seven members, and the usual five out of seven votes will be required to approve a "d" variance.
Since the applicant in this case failed to obtain the requisite five out of seven votes, the Board denied the "d" variance application. While the trial court correctly concluded that only seven members could vote on the application, it found the Board's denial of the variance to be arbitrary, capricious, and unreasonable and overturned that decision. In our review of the record, however, we find no abuse of discretion by the Board. Accordingly, we affirm the trial court's ruling on the voting question; we reverse its order overturning the Board's decision; and we reinstate the Board's denial of the "d" variance.
The Surfrider Beach Club, owned by plaintiff D. Lobi Enterprises, Inc. (the Club), is located in the B-3 zoning district in the Borough of Sea Bright. While beach clubs are a permitted use in the zone, restaurants are not. In 1992, the Club received a variance allowing it to operate a restaurant at that location. In 2005, the Club applied for a "d" variance to expand this nonconforming use.
The application came before the Planning Board of the Borough of Sea Bright, sitting as the Board of Adjustment (the Board) pursuant to N.J.S.A. 40:55D-25(c), and extensive hearings were held. The mayor and council member who served on the Board as the Class I and Class III members respectively were precluded from participating in the consideration of the "d" variance application by N.J.S.A. 40:55D-25(c). Due to various recusals, the Board was left with eight members, including two alternates. The Club maintained that all eight should vote so that an affirmative vote of five of the eight would pass the variance. The Board's counsel advised that only seven may vote, so the second alternate should not participate in the vote.
In order to preserve the issue on appeal, the second alternate was allowed to vote along with the other seven Board members. The vote was five to three in favor of the application. However, when the second alternate's vote was not counted, the vote was four to three in favor of the application, thereby falling short of the five affirmative votes needed to pass a "d" variance under N.J.S.A. 40:55D-70(d). As a result, the Board denied the variance.
The Club filed this action in lieu of prerogative writs in the Law Division, challenging the denial. David J. DeSio, a neighboring landowner, objector, and member of the Board who had recused himself when the application was heard, intervened in the case. The trial court held that the vote by seven members was proper and that alternates could not replace the mayor and council member for a vote on a "d" variance application. The trial court, however, reversed the Board's decision on the variance, concluding that it should have been granted.
The intervenor appeals the trial court's decision reversing the denial of the variance. The Club cross-appeals the trial ...