On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-003117-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Ashrafi.
Plaintiff Congregation Shomrei Torah of Passaic/Clifton, Inc., filed an application with defendant Planning Board of the City of Clifton on or about April 3, 2009, seeking conditional use approval to construct a combined synagogue and manse. By letter dated June 24, 2009, Clifton Zoning Officer Daniel Howell informed plaintiff's counsel that, after consulting with the Planning Board's consultant and attorney, it was his opinion that the application does not meet the parking requirements for the conditional use along with the parking requirements of the accessory uses as required in Section 461-25(C)(5), General provisions for conditional uses.
A conditional use variance . . . is required and jurisdiction lies with the Zoning Board of Adjustment.
Instead of filing an application for a conditional use variance before
the Board of Adjustment as Howell suggested, plaintiff filed a
complaint in the Law Division seeking a
judicial declaration that plaintiff's application met the requirements
for conditional use approval. After joinder of issue, which included a
consent order permitting Protect Our Neighborhood, L.L.C.*fn1
to appear in the case as intervenor, the Planning Board moved
to dismiss plaintiff's complaint for failure to exhaust administrative
After considering the arguments of counsel, Judge Garry S. Rothstadt granted the Planning Board's motion, finding plaintiff failed to exhaust the administrative remedies provided in N.J.S.A. 40:55D-70b, which confers local boards of adjustment with primary jurisdiction to adjudicate applications seeking an interpretation of a municipality's local zoning ordinances. Judge Rothstadt also found plaintiff's complaint did not fall within the line of cases in which "special circumstances" permit the Superior Court to bypass the board of adjustment's primary jurisdiction. The judge elaborated on this analysis and explained his reasons in a memorandum of opinion dated January 25, 2010.
Following the court's dismissal of its complaint, plaintiff filed an application with the Board of Adjustment, denoting it as "an appeal from an order of the Zoning Officer based on an opinion rendered by the City's Planning Consultant . . . ." On April 21, 2010, the Board of Adjustment issued a resolution declining to hear plaintiff's "appeal." Emphasizing that plaintiff's application was an "appeal [of] the Zoning Officer's decision," the Board of Adjustment determined this request for relief was time-bared under N.J.S.A. 40:55D-72.
Plaintiff returned to the Law Division by filing a motion to set aside the order of dismissal entered on January 25, 2010, and to summarily compel the Board of Adjustment to hear plaintiff's application appealing the zoning officer's decision. Alternatively, plaintiff sought leave of the court to file an amended complaint to include a request for a judicial declaration that the time restriction contained in N.J.S.A. 40:55D-72, as applied to plaintiff's appeal to the Board of Adjustment, had been or should be tolled or waived.
After considering the arguments of counsel, the court acknowledged that the language in its January 25, 2010 order may have inadvertently caused some confusion as to the nature and scope of its ruling. Judge Rothstadt thus made clear that he intended plaintiff to apply "to the Zoning Board for the purpose of interpreting the ordinance." He did not intend for this to be viewed as an appeal by plaintiff of the zoning officer's interpretation.
Judge Rothstadt denied plaintiff's motion and "directed" plaintiff "to file an application to the Board of Adjustment . . . for an interpretation of the Zoning Ordinance . . . pursuant to the provisions of N.J.S.A. 40:55D-70b for the purposes stated in the court's written opinion dated January 25, 2010." The court further ordered the Board of Adjustment to hear plaintiff's application after being served as required by statute.
As ordered by the court, plaintiff filed an application to the Board of Adjustment for an interpretation of the zoning ordinance. However, because this application contained revised parking calculations, plaintiff argues that this was not the same plan previously reviewed by the Planning Board or the trial court. The application remains before the Board of Adjustment pending the outcome of this appeal.
Protect Our Neighborhood, L.L.C., in its capacity as intervenor, now appeals the trial court's January 25 and July 15, 2010 ...