(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 21, 1998 -- Decided May 18, 1998
GARIBALDI, J., writing for a unanimous Court.
The issue in this appeal is whether a municipal governing body has standing to challenge the
certification of a nonconforming use by the zoning board and, as a threshold inquiry, whether an applicant
seeking certification of a nonconforming use, pursuant to N.J.S.A. 40:55D-68 (“Section 68"), must comply
with the notice requirements of N.J.S.A. 40:55D-12 (“Section 12") of the Municipal Land Use Law
(“MLUL”). In a companion case, Paruszewski v. Township of Elsinboro, also decided today, the Court
held that, in certain limited circumstances, a municipal governing body has standing to appear before the
zoning board of adjustment to oppose a nonconforming use certification petition.
Hugh Schultz owns property at Lot 12 in Stafford Township on which he operates his business,
Manahawkin Auto Sales. He also used adjoining Lot 13 to display and store cars. In January 1995, a
Deputy Code Enforcement Officer served Schultz with a violation notice, informing him that his car business
was being operated on Lot 13 in violation of the Stafford code. In response to that notice, Schultz filed an
application with the Stafford Township Zoning Board of Adjustment requesting certification that the sale,
purchase and repair of automobiles on Lot 13 was a pre-existing nonconforming use.
The Zoning Board held a public hearing in July 1995 to consider Schultz's application. However,
Schultz never provided notice of that hearing to owners of property within 200 feet of Lot 13 and did not
publish a notice in the appropriate newspaper. At the hearing, no one, with the exception of the township
deputy code enforcement officer, appeared in opposition to Schultz's application. The Township of Stafford
attributes that fact to lack of notice. Based on the testimony presented, the Zoning Board approved
Schultz's application, finding his use of Lot 13 for storage and display of cars to be a pre-existing
nonconforming use.
In August 1995, the Township filed a complaint in lieu of prerogative writs in Superior Court, Ocean
County. The Zoning Board subsequently joined in the Township's brief, concurring that its own decision
should be overturned on appeal. The Law Division found that the Township had no standing because “the
matter before the Board was so narrow in scope” that there was no actionable risk to the character of the
district.
The Appellate Division reversed and vacated the Zoning Board's certification, without prejudice to
Schultz's right to reapply to the zoning board on proper notice to the neighboring landowners. The panel
specifically found that the Board had no jurisdiction to hear Schultz's nonconforming use certification
application in the absence of notice to neighboring landowners within 200 feet of Lot 13. In addition, the
panel held that if the Zoning Board lacked jurisdiction, the Township had standing to challenge the Board's
certification based on “arrogation of authority,” equating injury to the Township's citizens with interference
with the Township's statutory authority.
The Supreme Court granted Schultz's petition for certification.
HELD: Because the Zoning Board did not have authority to act and deprived the adjoining landowners of
notice and the opportunity to be heard and the Board of an opportunity to hear all the facts, the Township
did have standing to challenge the Board's action.
1. A zoning board's power to certify nonconforming uses is exclusive and may not be exercised by any other
municipal agency, and its decision with respect to certification of a pre-existing nonconforming use is not
appealable to the governing body. (pp. 5-7)
2. Based on its plain language, the MLUL does not require certification for nonconforming use applicants to
give notice to their adjoining landowners. (p.8)
3. Because the Legislature did not consider whether Section 12 notice requirements should apply to a
nonconforming use certification application, the statute must be construed consonant with the probable intent
of the drafters. (pp. 8-11)
4. Schultz was required to comply with MLUL's Section 12 notice requirements. (pp.11-12)
5. There is a presumption in favor of retrospectivity of a judicial decision, which can be overcome only by
clear demonstration in a particular case that there are sound policy reasons for according the decision
perspective application only. In deciding whether a new rule should be applied prospectively or
retroactively, a court's decision is guided by what is just and consonant with the public policy consideration
in the situation presented. (pp. 12-13)
6. Schultz is bound by the notice requirements of Section 12 of the MLUL because the purpose of the “new
rule” announced by the Court is furthered by retroactive application and because Schultz has not
demonstrated reliance on his alternative reading of the MLUL notice requirement to justify prospective
application of the rule. (pp. 13-15)
7. Because Schultz failed to comply with the notice requirements of Section 12 of the MLUL, the Zoning
Board lacked jurisdiction to hear or consider his application and exceeded its authority in certifying Schultz's
use as a pre-existing nonconforming use. (pp. 18-19)
8. When a zoning board exceeds its authority in certifying a nonconforming use and such action threatens
the public's interest or enforcement of the MLUL, then a governing body may institute an action in lieu of
prerogative writs challenging the board's nonconforming use certification. (pp. 19-20)
9. The Township is not precluded from challenging the certification because of its failure to challenge the
Zoning Board's jurisdiction at the hearing on Schultz's application. (p. 20)
10. The Court limits its decision to those rare circumstances where a zoning board exceeds the scope of its
authority, thereby arrogating the governing body's authority, and such action threatens either the public
interest or enforcement of the MLUL. (pp. 20-22)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
78 September Term 1997
TOWNSHIP OF STAFFORD, a municipal
corporation of the State of
New Jersey,
Plaintiff-Respondent,
v.
STAFFORD TOWNSHIP ZONING
BOARD OF ADJUSTMENT,
Defendant-Respondent,
and
HUGH SCHULTZ,
Defendant-Appellant.
Argued January 21, 1998 -- Decided May 18, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
299 N.J. Super. 188 (1997).
Nicholas C. Montenegro argued the cause for
appellant (Wilbert & Montenegro, attorneys;
Glenn R. Stern, on the briefs).
Charles W. Hutchinson argued the cause for
respondent Township of Stafford (Gilmore &
Monahan, attorneys).
Michael H. Mathis submitted a statement in lieu of
brief on behalf of respondent Stafford Township
Zoning Board of Adjustment.
The opinion of the Court was delivered by
GARIBALDI, J.
In Paruszewski v. Township of Elsinboro, ___ N.J. ___, ___
(1998)(slip. op. at ___), also decided today, we held that in
certain limited circumstances a municipal governing body has
standing to appear before the zoning board of adjustment to
oppose a nonconforming use certification petition. In this
appeal, we consider whether a municipal governing body has
standing to challenge the certification of a nonconforming use by
the zoning board. To resolve that question, we first must
determine whether an applicant seeking certification of a pre-existing nonconforming use, pursuant to N.J.S.A. 40:55D-68
("Section 68"), must comply with the notice requirements,
pursuant to N.J.S.A. 40:55D-12 ("Section 12"), of the Municipal
Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -136.
In response to that violation notice, petitioner filed an
application with the Stafford Township Zoning Board of Adjustment
("Zoning Board" or "Board") on May 1, 1995, requesting
certification that the "sale, purchase and repair of automobiles"
on Lot 13 was a pre-existing, nonconforming use. The Zoning
Board held a public hearing in July 1995 to consider petitioner's
application. Petitioner, however, provided no notice of that
hearing to owners of property within 200 feet of Lot 13 and did
not publish a notice in the appropriate newspaper. See N.J.S.A.
40:55D-12(a). At the hearing, petitioner and five additional
witnesses supported his application, stating that petitioner had
used Lot 13 to store and display cars since 1963. Pharo was the
only witness to testify in opposition to the application, stating
that he drove by Lot 13 on a daily basis for three years and he
"never" saw a car on Lot 13 until the day he cited petitioner for
a violation. No testimony was heard from petitioner's
neighboring landowners; the Township of Stafford ("Township")
attributes that fact to lack of notice. Based on the testimony
presented, the Zoning Board approved petitioner's application,
finding that petitioner's storage and display of cars on Lot 13
was a pre-existing, nonconforming use. The Board, however,
imposed as a restriction that "the use found to be exempt . . .
does not include the service or repair of any motor vehicle."
In August 1995, the Township filed a complaint in lieu of
prerogative writs in Superior Court, Ocean County. The Zoning
Board subsequently joined in the Township's brief, concurring
that its own decision should be overturned on appeal. Relying on
Township of Dover v. Board of Adjustment,
158 N.J. Super. 401
(App. Div. 1978), the Law Division found that the Township had no
standing because "the matter before the Board was so narrow in
scope" that there was no actionable risk to the character of the
district. Because the court found the issue of the Township's
standing dispositive, it did not rule on whether petitioner was
required to provide Section 12 notice in his application for a
nonconforming use certification.
The Appellate Division reversed and vacated the Zoning
Board's certification, "without prejudice to the applicant's
right to reapply to the zoning board on proper notice to the
neighboring landowners." Township of Stafford v. Stafford
Township Zoning Bd. of Adjustment,
299 N.J. Super. 188, 190 (App.
Div. 1997). The panel found that the Board had no jurisdiction
to hear petitioner's nonconforming use certification application
in the absence of notice to neighboring landowners "within 200
feet" of Lot 13. N.J.S.A. 40:55D-12. In addition, the court
held that if the Zoning Board lacked jurisdiction, the Township
had standing to challenge the Board's certification based on the
"arrogation of authority" requirement enunciated in Dover, supra.
The court equated injury to the Township's citizens with
interference with the Township's statutory authority. 299 N.J.
Super. at 198. We granted certification,
151 N.J. 71 (1997), and
now affirm.
The prospective purchaser, prospective mortgagee, or any other person interested in any land upon which a nonconforming use . . . exists may apply in writing for the issuance of a certificate certifying that the use . . . existed before the adoption of the ordinance which rendered the use . . . nonconforming. The applicant shall have the burden of proof. Application pursuant hereto may be made to the administrative officer within one year of the adoption of the ordinance which rendered the use or structure
nonconforming or at any time to the board of
adjustment. . . . Denial by the
administrative officer shall be appealable to
the board of adjustment.
Before asking a court for relief, any person whose
application to certify a nonconforming use is denied by the
administrative officer or who applies more than one year after
the adoption of the pertinent ordinance must first file an appeal
or application with the zoning board. R. 4:69-5 (requiring
exhaustion of administrative remedies before action in lieu of
prerogative writs may be maintained); see also Bell v. Township
of Bass River,
196 N.J. Super. 304, 314 (Law Div. 1984)
(explaining that exhaustion of remedies requirement is
appropriate because zoning board "is particularly well equipped
to address non-conforming use disputes"); Borough of Bay Head v.
MacFarlan,
209 N.J. Super. 134, 137 n.1 (App. Div. 1986) (noting
court is not "the most appropriate forum for determining zoning
questions, such as the existence of prior nonconforming uses").
The zoning board's power to certify nonconforming uses is
exclusive and may not be exercised by any other municipal agency,
N.J.S.A. 40:55D-68; N.J.S.A. 40:55D-20. The governing body,
therefore, is without power to certify nonconforming uses. See
Cronin v. Township Comm.,
239 N.J. Super. 611, 618 (App. Div.
1990). A zoning board's decision with respect to certification
of a pre-existing nonconforming use pursuant to Section 68 is not
appealable to the governing body. Any appeal of the board's
decision must be brought by an action in lieu of prerogative
writs that "'bring[s] before the superior court for inspection
the record of the proceedings of the inferior tribunal, to
determine whether the latter had jurisdiction and had proceeded
according to law.'" Wyzykowski v. Rizas,
132 N.J. 509, 522
(1993) (quoting State v. Court of Common Pleas,
1 N.J. 14, 19
(1948)).
With respect to most zoning and land use applications, the MLUL "requires public hearings[] [and] an opportunity for the public to be heard." Township of Berkeley Heights v. Board of Adjustment, 144 N.J. Super. 291, 300 (Law Div. 1976)(citing N.J.S.A. 40:55D-10(d)). The MLUL ensures that the public has a chance to be heard, either in support of or in opposition to such applications, by imposing notice requirements. N.J.S.A. 40:55D-12. Section 12 requires "[p]ublic notice of a hearing" to be given "on an application for development." N.J.S.A. 40:55D-12(a). Specifically, "[p]ublic notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the
municipality." Ibid. In addition, notice "shall be given to the
owners of all real property . . . within 200 feet in all
directions of the property which is the subject of such hearing."
N.J.S.A. 40:55D-12(b).
The first question presented is whether an application for a nonconforming use certification is an "application for development" in the context of N.J.S.A. 40:55D-12(a). An "application for development" is defined in N.J.S.A. 40:55D-3 ("Section 3") as "the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction for the issuance of a permit . . . ." (emphasis added). N.J.S.A. 40:55D-7 ("Section 7"), in turn, defines "variance" as "permission to depart from the literal requirements of a zoning ordinance pursuant to section [40:55D-60] and subsection [40:55D-40(b)] and [40:55D-70(c)-(d)]" of the MLUL. Based on the plain language of the above three statutory provisions, the MLUL does not require Section 68 applicants to give notice to their adjoining landowners.
Section 12, however, requires that applicants for expansion of a nonconforming use, pursuant to N.J.S.A. 40:55D-70(d) ("Section 70(d)"), provide notice to adjoining landowners. In its reversal, the Appellate Division concluded that petitioner was required to provide notice pursuant to Section 12 because his application was, in fact, a hybrid application under both Section
68 and Section 70(d). 299 N.J. Super. at 194. The court found
that petitioner actually applied to expand his nonconforming use
because his application sought certification not only for the
storage and display of cars, which petitioner testified he had
done since 1963, but also for the repair of cars, which
petitioner admitted he did not previously perform on Lot 13.
Therefore, the "use of the lot for repairing vehicles" would
constitute an expansion of petitioner's pre-existing,
nonconforming use and, consequently, required a Section 70(d)
application and notice to all neighboring landowners. Ibid.
In dicta, the court further observed that the facts of this case
suggest "'a situation which apparently escaped the attention of
the draftsman.'" Id. at 195 (quoting Dvorkin v. Dover Township,
29 N.J. 303, 313 (1959)). The court further reasoned that,
logically, Section 12 notice requirements should be applied to
Section 68 applications. Id. at 196.
"'Generally, a court's duty in construing a statute is to
determine the intent of the Legislature.'" Stafford, supra, 299
N.J. Super. at 195 (quoting AMN, Inc. v. South Brunswick Township
Rent Leveling Bd.,
93 N.J. 518, 525 (1983)). To determine the
legislative intent, courts turn first to the language of the
statute. Strasenburgh v. Straubmuller,
146 N.J. 527, 539 (1996).
"If the language is plain and clearly reveals the meaning of the
statute, the court's sole function is to enforce the statute in
accordance with those terms." New Jersey Dep't of Law & Pub.
Safety v. Bigham,
119 N.J. 646, 651 (1990). However, this Court
has noted that
where it is clear that the drafters of a
statute did not consider or even contemplate
a specific situation, this Court has adopted
as an established rule of statutory
construction the policy of interpreting the
statute "consonant with the probable intent
of the draftsman 'had he anticipated the
situation at hand.'"
[AMN, Inc., supra, 93 N.J. at 525 (citations
omitted)].
See also Stafford, supra, 299 N.J. Super. at 195 (same).
The facts presented in this case illustrate the possibility
that what may initially appear to be a Section 68 application
may turn out to be a Section 70(d) application during the hearing
process, a situation apparently not foreseen by the Legislature.
As the Appellate Division correctly noted:
The problem with excepting Section 68
applications from the notice provisions of
Section 12, as demonstrated by what occurred
in this case, is that prior to the hearing
neither the zoning board nor the public is in
a position to know whether the applicant's
request will in fact be limited to approval
of an existing use, or will instead result in
an expansion of an existing use. And this is
true without regard to the manner in which
the application is styled: whether it is an
expansion or not will turn on the facts
developed at the hearing. Since a zoning
board can only hear an application for
expansion of a nonconforming use under
N.J.S.A. 40:55D-70d on notice to the
neighboring landowners, a Section 68
application logically should be accorded the
same treatment. That follows because the
applicant may be claiming as pre-existing
what is in reality an expansion of a use.
Another prominent commentator on zoning and land use advocates a
similar conclusion. See New Jersey Zoning, supra, § 5-2.5
("[T]he decision by a board of adjustment on an application
. . . to interpret the meaning of certain provisions of the
zoning ordinance have such widespread ramifications . . . that
lack of notice in such cases would be inequitable and highly
undesirable from a public policy viewpoint.").
We do not believe that the Legislature considered whether
Section 12 notice requirements should apply to a Section 68
nonconforming use certification application. We observe that
although Section 68 applications for certification of a
nonconforming use may be submitted to the zoning board at any
time, such applications submitted within one year of the adoption
of the ordinance that rendered the use nonconforming also may be
submitted to the administrative officer. Unlike the zoning
board, which is a quasi-judicial board, the granting of a
nonconforming use certification by the administrative officer is
a ministerial proceeding. Accordingly, if the Legislature had
considered whether the notice provisions of Section 12 were
applicable to Section 68 applications, we do not believe that the
Legislature would have intended Section 12 notice to be provided
for such administrative applications. However, for applications
initially submitted to the zoning board, or those originally
submitted to an administrative officer and then appealed to the
zoning board, we believe that the Legislature would have intended
Section 12 notice requirements to apply. In this case, the
application was submitted to the zoning board. We, therefore,
hold that petitioner was required to comply with the MLUL's
Section 12 notice requirements.
Because we conclude that Section 68 applicants must comply with Section 12 notice requirements, we must now consider whether that holding applies retroactively to petitioner. We find that it does.
"This Court has 'generally followed the traditional rule that the overruling of a judicial decision is retrospective in nature.'" Rutherford Educ. Ass'n. v. Board of Educ., 99 N.J. 8, 21 (1985) (quoting Darrow v. Hanover Township, 58 N.J. 410, 413 (1971)); see also Fischer v. Canario, 143 N.J. 235, 243 (1996). "[T]he basis for the doctrine of retrospective application is pragmatic rather than theoretical." Rutherford, supra, 99 N.J. at 21. "Thus, there is a presumption in favor of retrospectivity, and 'that presumption can be overcome only by a clear demonstration in a particular case that there are sound policy reasons for according a judicial decision prospective application only.'" Ibid. (quoting Cogliati v. Ecco High Frequency Corp., 181 N.J. Super. 579, 583 (App. Div. 1981), aff'd, 92 N.J. 402 (1983)).
The threshold inquiry in determining whether to apply a ruling retrospectively is "whether the rule at issue is a 'new rule of law.'" State v. Knight, 145 N.J. 233, 249 (1996); see also Rutherford, supra, 99 N.J. at 21. The Appellate Division
characterized the application of Section 12 notice requirements
to Section 68 petitions as "novel." 299 N.J. Super. at 193.
Because there is no prior New Jersey case deciding that issue, we
conclude that requiring Section 68 applicants to provide Section
12 notice to adjoining landowners is a new rule of law.
Therefore, we now must determine whether that new rule
should be applied prospectively or retroactively. In deciding
that issue, “a court's decision is guided by 'what is just and
consonant with the public policy considerations in the situation
presented.'” Fischer, supra, 143 N.J. at 244 (quoting Rutherford,
supra, 99 N.J. at 22). In making that determination, we consider
the following factors: “'(1) the purpose of the rule and whether
it would be furthered by a retroactive application, (2) the
degree of reliance placed on the old rule by those who
administered it, and (3) the effect a retroactive application
would have on the administration of justice.'” Knight, supra,
145 N.J. at 251 (quoting State v. Nash,
64 N.J. 464, 471 (1974)).
The inquiry is very fact sensitive.
"Depending upon the facts of a case, one of the factors may
be pivotal." Rutherford, supra, 99 N.J. at 23. In this case,
factors one and two are the significant factors. With respect to
the first factor, the purpose of the new rule -- to maximize
notice to adjoining landowners of hearings where nonconforming
use status will be determined -- is furthered by retroactive
application. The purpose of notice is "to ensure that members of
the general public who may be affected by the nature and
character of the proposed development are fairly apprised thereof
so that they may make an informed determination as to whether
they should participate in the hearing." Perlmart of Lacey, Inc.
v. Lacey Township Planning Bd.,
295 N.J. Super. 234, 237 (App.
Div. 1996) (emphasis added).
Turning to the second factor, we conclude that application
of the Section 12 notice requirements does not result in
prejudice to petitioner. By affording the adjoining landowners
an opportunity to be heard, petitioner is not deprived of the
opportunity to reappear before the Zoning Board. If indeed the
use of his property is a valid, pre-existing nonconforming use,
petitioner will suffer no prejudice as a result of this Court's
decision. Rather, the procedural breach in this case will be
corrected and petitioner's right to a further hearing remains
preserved. Petitioner's right to reapply distinguishes this case
from those that announce a new statute of limitations, where the
plaintiff's right to recover would be eliminated if the rule were
applied retroactively. See, e.g., Green v. Selective Ins. Co. of
Am.,
144 N.J. 344, 354-55 (1996) (applying statute of limitations
holding prospectively in the interest of "fairness and justice");
Montells v. Haynes,
133 N.J. 282, 298 (1993) (applying statute of
limitations holding prospectively where law prior to decision was
"sufficiently murky to justify" reliance on longer limitations
period).
Because the purpose of the "new rule" announced by the Court
is furthered by retroactive application and because petitioner
has not demonstrated reliance on his alternative reading of the
MLUL notice requirements sufficient to justify prospective
application of the rule, petitioner is subject to the Section 12
notice requirements.
Based on that determination, we now consider whether the Township had standing to challenge the zoning board's certification of petitioner's nonconforming use petition. In Paruszewski, supra, ___ N.J. at ___ (slip op. at ___), also decided today, the Court provided a thorough discussion of the powers of a governing body and zoning board and their breadth as mandated by the New Jersey Constitution, statutes, and judicial decisions. The Appellate Division, reasoning that the Board usurped the Township's power by rendering a decision without proper notice to neighboring landowners, held that the Township had standing to challenge the Zoning Board's certification of petitioner's use of Lot 13. 299 N.J. Super. at 195-96. In reaching that determination, the Appellate Division, as it did in Paruszewski, 297 N.J. Super. 531 (1997), relied on Dover, supra, 158 N.J. Super. 401, and Zoning Bd. of Adjustment v. Datchko, 142 N.J. Super. 501 (App. Div. 1976).
In Datchko, supra, the Appellate Division recognized the governing body's power to file an action in lieu of prerogative writs against a municipal body "alleged to be in violation of
[its] authority." 142 N.J. Super. at 508 n.2. Subsequently, the
Dover opinion limited the situations where the governing body
would have standing without expressly overruling Datchko. In
Dover, supra, a developer applied to the zoning board for a
variance to develop an eighty-one acre tract of land in a rural
zone to allow the construction of 162 homes rather than the
maximum of ninety-four homes otherwise prescribed. 158 N.J.
Super. at 406. Following public hearings, the zoning board
granted the variance. The township filed an action in lieu of
prerogative writs against the developer and its zoning board,
seeking to set aside the variance proposal. The Law Division
dismissed the township's complaint for lack of standing. On
appeal, the Appellate Division reversed. Id. at 414.
In its decision, the Dover panel reasoned:
We are . . . satisfied that so long as the
board acts within the ambit of its authority,
whether it has acted wisely or not, and
whether it has acted correctly or not, are
not matters which the governing body itself
should be able to raise.
An arrogation of authority is, however,
quite a different matter and, in our view, is
necessarily and obviously actionable by the
body whose authority has been directly
infringed upon.
[158 N.J. Super. at 409 (emphasis added).]
Reading that language liberally, the Appellate Division in the
instant case concluded that
we are also involved with an arrogation of
authority by the zoning board, although we do
not believe it was done knowingly. While
here the arrogation did not directly infringe
upon the governing body's authority, the
specific nature of the arrogation, holding a
hearing without the required notice to the
neighboring landowners, substantially
interfered with the ability of citizens to
institute actions on their own.
[299 N.J. Super. at 198 (citation omitted).]
See also Washington Township Zoning Bd. of Adjustment v.
Washington Township Planning Bd.,
217 N.J. Super. 215, 223 (App.
Div.) (recognizing "'wholesale' invasion of a governing body's
paramount legislative powers over the zoning scheme of a
municipality" supports governing body's standing to challenge
such an invasion), certif. denied,
108 N.J. 218 (1987).
This Court has recognized that a municipal agency's parens
patriae interest in protecting the general public is insufficient
to support standing to challenge an exercise of power by another
municipal agency. See County of Bergen v. Port of New York
Auth.,
32 N.J. 303, 311-15 (1960). To allow such contests among
agencies "solely to vindicate the right of the public" is "to
invite confusion in government and a diversion of public funds
from the purposes for which they were entrusted." Id. at 314.
Numerous New Jersey cases have reached a similar conclusion.
See, e.g., Washington Township, supra, 217 N.J. Super. at 224;
Council of Newark v. James,
232 N.J. Super. 449, 451 (App. Div.),
certif. denied,
117 N.J. 166 (1989).
However, the Datchko and Dover courts recognized that the
governing body will have standing to institute an action in lieu
of prerogative writs in certain limited circumstances. See
Datchko, supra, 142 N.J. Super. at 508 (holding that "the
municipal governing body may institute an action [in lieu of
prerogative writs], to rescind the relief so granted [by the
zoning board] and to enjoin what is actually a violation of the
zoning ordinance and plan"); Dover, supra, 158 N.J. Super. at
409; see also Council of Newark, supra, 232 N.J. Super. at 451-52
(holding that city council had standing to sue mayor "to prevent
[him] from encroaching on its statutory duties and
responsibilities.")
Although the Dover court addressed the issue of standing in
the context of the variance procedure, its holding remains
helpful in the context of nonconforming use certifications.
Subsequent variance cases have applied Dover's "arrogation of
authority" requirement. See, e.g., Vidal v. Lisanti Foods, Inc.,
292 N.J. Super. 555, 564 (App. Div. 1996) (holding zoning board's
grant of use variances based on view that present zoning is
inappropriate "constituted an impermissible de facto rezoning of
the tract" and usurped governing body's power to make zoning
decisions by ordinance); 41 Maple Assocs. v. Common Council,
276 N.J. Super. 613, 616 (App. Div. 1994) (quoting Dover in support
of proposition that governing body may challenge municipal
board's grant of variance "'only where that variance
substantially affects the zoning plan of the municipality'");
Feiler v. Fort Lee Bd. of Adjustment,
240 N.J. Super. 250, 256-57
(App. Div. 1990) (finding use of variance power to convert entire
low density two-family zone into high density residential tower
district to constitute de facto rezoning of entire district),
certif. denied,
127 N.J. 325 (1991).
Applying Dover in this case raises two questions: (1) whether the Zoning Board exceeded its authority in hearing petitioner's application and certifying his use without petitioner having complied with Section 12 notice requirements, and (2) if the Zoning Board did act beyond its authority, whether the Township had standing to challenge the Zoning Board's action. Because petitioner was required to comply with the MLUL's Section 12 notice requirements, the Board exceeded its authority in certifying petitioner's use of Lot 13 as a pre-existing, nonconforming use. "[T]he giving of statutory notice of hearing is a jurisdictional requirement, and unless notice is given as required by statute the board lacks power to hear or consider an application even if the subject matter is within its statutory power." New Jersey Zoning, supra, § 4-2.1; see also Perlmart, supra, 295 N.J. Super. at 236 (finding that "proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal to the Planning Board's approval"). Petitioner was required to provide Section 12 notice to all landowners within 200 feet of Lot 13. N.J.S.A. 40:55D-12. His failure to do so removes the Zoning Board's jurisdiction to hear his application, even though the subject matter, i.e., nonconforming use certification, was within its statutory power. Therefore, the Board's action in
hearing petitioner's application falls outside the ambit of its
authority.
Our finding that the Board's action in this case resulted in
an arrogation of its authority raises the issue whether the
Township had standing to challenge the Board's certification by
way of an action in lieu of prerogative writs. We find that it
did. When a zoning board exceeds its authority in certifying a
nonconforming use and such action threatens the public's interest
or enforcement of the MLUL, then a governing body may institute
an action in lieu of prerogative writs challenging the board's
nonconforming use certification. For example, if the Township
simply were asserting that the Zoning Board had acted improperly
in determining whether petitioner's sale, purchase and repair of
automobiles constituted a valid, nonconforming use, the Township
would lack standing to institute a court proceeding challenging
that determination. However, because the Zoning Board did not
have authority to act and deprived the adjoining landowners of
notice and the opportunity to be heard and the Board of an
opportunity to hear all the facts, the Township did have standing
to challenge the Board's action.
Finally, the Township is not precluded from challenging the certification because of its failure to challenge the Zoning Board's jurisdiction at the hearing on petitioner's application. That finding is particularly appropriate in this case given that this Court had not previously decided whether a township could
appear before its zoning board in opposition to or in support of
a specific application. See Paruszewski, supra, ___ N.J. at ___
(slip op. at ___).
This case, and its companion case, Paruszewski, supra, ___ N.J. ___, require the Court to consider when a governing body will have standing in connection with nonconforming use certification applications. In Paruszewski, the issue was whether a governing body may send the township attorney to oppose a nonconforming use certification application before the zoning board. In this case we decide whether a governing body may judicially challenge action taken by the zoning board on a nonconforming use certification application.
The power to issue nonconforming use certifications is granted solely to the municipality's appropriate administrative officer and to the zoning board. N.J.S.A. 40:55D-68; N.J.S.A. 40:55D-20. The governing body has no power to hear Section 68 nonconforming use applications or to review a zoning board's decision on such an application. Paruszewski, supra, ___ N.J. ___ (slip op. at ___). Moreover, the MLUL prohibits the governing body from infringing on those powers expressly reserved to the planning and zoning boards. N.J.S.A. 40:55D-20 ("Any power expressly authorized by this act to be exercised by [the] (1) planning board or (2) board of adjustment shall not be exercised by any other body, except as otherwise provided in this act."). By giving exclusive authority over nonconforming use
certifications to the zoning board and providing that the
governing body of a municipality has no right to review the
board's decision on a Section 68 nonconforming use petition, the
Legislature evidenced its intent that the governing body
generally should not interfere with or influence the zoning
board's decision with respect to nonconforming use
certifications, unless the zoning board exceeds its statutory
authority and such arrogation affects a substantial public
interest of the township or zoning plan. Id. at ___ (slip op. at
___).
We recognize that by allowing suits between governmental
bodies "the prompt and orderly review of land use applications,
envisioned by the [MLUL], would essentially grind to a halt."
Washington Township, supra, 217 N.J. Super. at 224. Therefore,
in this case, we limit our decision to those rare circumstances
where a zoning board exceeds the scope of its authority, thereby
arrogating the governing body's authority, and such action
threatens either the public interest or enforcement of the MLUL.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-78 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
TOWNSHIP OF STAFFORD, etc.,
Plaintiff-Respondent,
v.
STAFFORD TOWNSHIP ZONING
BOARD OF ADJUSTMENT,
Defendant-Respondent,
and
HUGH SCHULTZ,
Defendant-Appellant.
DECIDED May 18, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY