NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5718-07T25718-07T2

D. LOBI ENTERPRISES, INC.,

Plaintiff-Respondent/

Cross-Appellant,

v.

PLANNING/ZONING BOARD OF THE

BOROUGH OF SEA BRIGHT,

Defendant,

and

DAVID J. DESIO,

Defendant/Intervenor-

Appellant/Cross-Respondent.

_________________________________________

Argued May 27, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5188-07.

Michael R. Leckstein argued the cause for appellant/cross-respondent (Leckstein & Leckstein, L.L.C., attorneys; Marc A. Leckstein, on the brief).

Thomas J. Hirsch argued the cause for respondent/cross-appellant.

The opinion of the court was delivered by

CHAMBERS, J.A.D.

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.

I

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 court's decision on the voting issue.

II

Because the resolution of the voting question is a matter of statutory interpretation and is thus a legal question, we owe no special deference to the decision of the trial court or the Board. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (noting that the appellate court owes no "special deference" to the trial court's legal conclusions); N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (stating that "conclusions of a municipal board on matters of statutory interpretation are not entitled to any particular deference").

Our role in interpreting statutes is to discern the Legislature's intent. Marshall v. Klebanov, 188 N.J. 23, 36 (2006). In doing so, we accord to the words used "their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). If the statute is clear based on the usual and well understood meaning of its language, then "the court's sole function is to enforce the statute in accordance with those terms." Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 12 (2007) (quoting Phillips v. Curiale, 128 N.J. 608, 618 (1992)). When the meaning of the statute is unclear or ambiguous, then we must look to extrinsic evidence, including legislative history to discern its meaning. Ibid. Further, "when 'a literal application of the language used would lead to results incompatible with the legislative design,' we are obligated 'to give effect to the obvious purpose of the Legislature.'" Marshall v. Klebanov, supra, 188 N.J. at 37 (quoting New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N.J. 155, 160 (1957)).

We begin our analysis with the statutory scheme governing voting for "d" variances. Municipal boards of adjustment created under N.J.S.A. 40:55D-69 have seven members, and they may have up to four alternates. The alternates "may participate in all matters," but are not allowed to vote unless a regular member is absent or disqualified in which case an alternate will replace that person. N.J.S.A. 40:55D-69.

The statutes provide that the affirmative vote of at least five members of a board of adjustment is necessary to grant a "d" variance. N.J.S.A. 40:55D-70(d); see also Assembly Municipal Government Committee Statement to S.1125 (Jan. 25, 1979) (enacted as L. 1979, c. 216) (explaining that N.J.S.A. 40:55D-70 was being amended in order to, among other things, "clarify that five affirmative votes (out of a total of seven members on the municipal board of adjustment) are necessary to approve a 'd' variance"). Thus, for a seven member municipal board of adjustment, five out of seven votes is necessary to approve a "d" variance. See N.J.S.A. 40:55D-69, -70(d). In the case of a regional board created pursuant to N.J.S.A. 40:55D-77, a two-thirds vote of the full membership is required to approve a "d" variance. N.J.S.A. 40:55D-70(d). The statute setting forth these voting requirements states:

A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.

[N.J.S.A. 40:55D-70(d).]

Other actions by a board of adjustment, including approval of other variances, do not have this heightened voting requirement. See N.J.S.A. 40:55D-70; see also William M. Cox, New Jersey Zoning and Land Use Administration