SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6404-95T5
TOWNSHIP OF STAFFORD, a Municipal
Corporation of the State of
New Jersey,
Plaintiff-Appellant,
v.
STAFFORD TOWNSHIP ZONING BOARD
OF ADJUSTMENT and HUGH SCHULTZ,
Defendants-Respondents.
Submitted February 19, 1997 - Decided March 31, 1997
Before Judges Michels and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County.
Gilmore & Monahan, attorneys for appellant
(Charles W. Hutchinson, on the brief).
Wilbert & Montenegro, attorneys for respondent
Hugh Schultz (Nicholas C. Montenegro, of
counsel and on the brief).
Michael H. Mathis, attorney for respondent
Stafford Township Zoning Board of Adjustment,
joins in the brief of appellant.
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
This action in lieu of prerogative writs, R. 4:69, projects two important issues under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129 (MLUL): does a zoning board of adjustment have jurisdiction to certify a nonconforming use as one which existed
before adoption of the zoning ordinance which rendered the use
nonconforming when the applicant has failed to notify the property
owners within 200 feet of the property of the hearing; if not, does
the governing body of the municipality have standing to challenge
the award of the certificate in those circumstances. The Law
Division dealt only with the second issue, holding that under
Township of Dover v. Board of Adj. of Tp. of Dover,
158 N.J. Super. 401 (App. Div. 1978) the governing body lacked standing.
Consequently, it dismissed the action. Plaintiff appeals. We
reverse the judgment below and vacate the certification issued by
the zoning board without prejudice to the applicant's right to
reapply to the zoning board on proper notice to the neighboring
landowners.
case, the testimony before the board need not be detailed. The
applicant and five supporting witnesses testified that the use of
Lot 13 for the display and sale of automobiles existed long prior
to the adoption of the Stafford zoning ordinance prohibiting such
use and continued to the present. The only witness in opposition,
the Township's Deputy Code Enforcement Officer, testified that the
lot had not been used for such purposes for approximately three
years preceding the application. On August 9, 1995, the zoning
board adopted a resolution granting Schultz most of the relief
requested, but providing these limitations:
2. That the use found to be exempt is
specifically limited to those activities
testified to and established before the Board
on July 12, 1995, and specifically does not
include the service of or repair of any motor
vehicle whatsoever, nor does the use in any
way extend to any structures located on the
subject premises, nor does the use extend to
any improvements of the premises whatsoever.
This interpretation is further subject to the
following conditions:
a. No automobile shall be parked by the
applicant within the right-of-way of Bay
Avenue or any closer than ten feet from the
existing edge of pavement of Bay Avenue,
whichever is further from the roadway;
b. No storage of junk cars or parts of
junk vehicles of any type of junk or similar
items as defined in the ordinances of Stafford
Township shall be permitted at any time on the
subject premises.
The well-established legal principles governing nonconforming
uses are summarized in Belleville v. Parrillo's, Inc.,
83 N.J. 309,
315-17 (1980), where the Court made this observation:
The method generally used to limit
nonconforming uses is to prevent any increase
or change in the nonconformity. Under that
restrictive view our courts have held that an
existing nonconforming use will be permitted
to continue only if it is a continuance of
substantially the same kind of use as that to
which the premises were devoted at the time of
the passage of the zoning ordinance. In that
regard nonconforming uses may not be enlarged
as of right except where the change is so
negligible or insubstantial that it does not
warrant judicial or administrative
interference. Where there is doubt as to
whether an enlargement or change is
substantial rather than insubstantial, the
courts have consistently declared that it is
to be resolved against the enlargement or
change.
The restrictive view is based upon the discordancy which generally
results from the presence of nonconforming uses in areas zoned for
other purposes and reflects "the fervent hope that they would in
time wither and die and be replaced by conforming uses."
Grundlehner v. Dangler,
29 N.J. 256, 263 (1959).
The MLUL expressly addresses nonconforming uses in two
sections, N.J.S.A. 40:55D-68See footnote 1 and N.J.S.A. 40:55D-70d.See footnote 2 Section
68 concerns applications for certifications that an existing use or structure predated the zoning ordinance prohibiting the use or structure and Section 70d governs requests for an expansion of a nonconforming use. Note, however, that Section 68 only authorizes application to the zoning board. Unlike Section 70d, it does not expressly authorize the zoning board to grant the relief. By implication, it is Section 70bSee footnote 3 which authorizes zoning boards to
hear matters arising under Section 68.
The novel question which has arisen in this case is whether a
hearing before a zoning board arising under Section 68 and Section
70b is a public hearing requiring notice to the neighboring
landowners.
The MLUL's requirements respecting notice to neighbors of
hearings is set forth in N.J.S.A. 40:55D-12, which provides in
pertinent part:
a. Public notice of a hearing on an
application for development shall be given,
except for (1) conventional site plan review
pursuant to section 34 of P.L. 1975, c. 291
(C.40:55D-46), (2) minor subdivisions pursuant
to section 35 of P.L. 1975, c. 291 (C.40:55D-47) or (3) final approval pursuant to section
38 of P.L. 1975, c. 291 (C. 40:55D-50);
provided that the governing body may by
ordinance require public notice for such
categories of site plan review as may be
specified by ordinance; and provided further
that public notice shall be given in the event
that relief is requested pursuant to section
47 or 63 of P.L. 1975, c. 291 (C. 40:55D-60 or
C. 40:55D-76) as part of an application for
development otherwise excepted herein from
public notice. Public 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.
b. Notice of a hearing requiring public
notice pursuant to subsection a. of this
section shall be given to the owners of all
real property as shown on the current tax
duplicates, located in the State and within
200 feet in all directions of the property
which is the subject of such hearing. . . .
An "application for development" is defined in N.J.S.A. 40:55D-3:
'Application for development' means 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
pursuant to section 25 or section 27 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-34 or N.J.S.A.
40:55D-36).
And a "variance" is defined in N.J.S.A. 40:55D-7:
'Variance' means permission to depart
from the literal requirements of a zoning
ordinance pursuant to section 47 [N.J.S.A.
40:55D-60] and subsection 29.2b. [N.J.S.A.
40:55D-40b], 57c. and 57d. [N.J.S.A. 40:55D-70c and d] of this act.
An application to a zoning board for a certification
recognizing the legality of a pre-existing nonconforming use
pursuant to N.J.S.A. 40:55D-68 and -70b is not expressly included
within N.J.S.A. 40:55D-3's definition of an "application for
development." Thus, read literally the statute would not require
that neighbors be notified of the hearing. On the other hand, if
the application is for an expansion of a nonconforming use, it fits
squarely within the definition of an "application for development."
That is so because an "application for development" specifically
includes a "zoning variance" and N.J.S.A. 40:55D-7 states that
variances include applications pursuant to N.J.S.A. 40:55D-70d,
which, in turn, lists "an expansion of a nonconforming use" as a
matter requiring a variance.
In this case the application asserted that the property and
structure was a "legal nonconforming business use for the sale,
purchase, and repair of cars." However, the applicant's evidence
established that cars were not repaired on this lot and that the
structure had not been used at all for any purpose relating to the
display and sale of cars. The zoning board recognized that use of
the lot for repairing vehicles and any use of the structure in
relation to the applicant's business would constitute expansions of
a nonconforming use according to the evidence. Therefore, its
resolution barred those activities.
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.
Thus, we are confronted with the not unfamiliar problem of
legislative interpretation in a case involving "a situation which
apparently escaped the attention of the draftsman . . . ." Dvorkin
v. Dover Tp.,
29 N.J. 303, 313 (l959). Our duty is clear, as Chief
Justice Weintraub observed in New Capitol Bar & Grill Corp. v. Div.
of Employment Sec.,
25 N.J. 155 (1957):
It is frequently difficult for a
draftsman of legislation to anticipate all
situations and to measure his words against
them. Hence cases inevitably arise in which a
literal application of the language used would
lead to results incompatible with the
legislative design. It is the proper
function, indeed the obligation, of the
judiciary to give effect to the obvious
purpose of the Legislature, and to that end
'words used may be expanded or limited
according to the manifest reason and obvious
purpose of the law. The spirit of the
legislative direction prevails over the
literal sense of the terms.'
More recently, the Court reiterated our duty in these pertinent
terms:
Generally, a court's duty in construing a
statute is to determine the intent of the
Legislature. In cases such as this, 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. v. So. Bruns. Tp. Rent Leveling Bd.,
93 N.J. 518,
525 (1983) (citations omitted).]
Informed by these principles, and mindful of the inability to
know in advance, or indeed until the end of the zoning board
hearing, whether or not a particular application will result in the
expansion of a nonconforming use or the reinstitution of a
nonconforming use which had, in fact, been abandoned, we have no
doubt the commonsense of the situation requires that we reject
literalism in this context as contrary to the legislative design.
Therefore, we hold that all zoning board applications relating to
nonconforming uses are applications for development under Section
12, requiring notice to neighboring landowners.
Since notice was required by the MLUL, the failure of the
applicant to provide the appropriate notices in this case deprived
the zoning board of jurisdiction to act on the application.
Auciello v. Stauffer,
58 N.J. Super. 522, 527 (App. Div. 1959).
Cox, New Jersey Zoning and Land Use Administration, § 27-1.5 (g) at
444 (1996).See footnote 4
actions taken by its zoning board. Perhaps more to the point, the
court was dealing with a case in which both the governing body and
the zoning board had joined forces in the Superior Court to rescind
the grant of zoning variances on the ground that they had been
obtained by fraud. The court held:
The township. . . and the zoning board
have a substantial public interest in
preserving the integrity of the zoning
ordinance. If, as here, a municipal authority
has been induced to grant relief in connection
therewith by fraud, it need not stand idly by.
It or the municipal governing body may
institute an action, such as that in the
present case, to rescind the relief so granted
and to enjoin what is actually a violation of
the zoning ordinance and plan. From
defendants' own application to the municipal
authorities it is apparent that the present
use of the premises would not have been
feasible without the approvals of the site
plan and the variances. Their
misrepresentations denied the municipal
agencies of an opportunity to review all of
the facts before determining the propriety of
the site plan approval, the grant of the
variances or the issuance of the certificate
of occupancy in the light of proper zoning
considerations. Judicial relief by this
action is available to these plaintiffs to
rectify what may reasonably be considered a
substantial impairment of the zoning plan.
The instant case is analogous. For here the approval was
improperly obtained due to the lack of proper notice to the public
and neighboring landowners. Furthermore, although the zoning board
is denominated a defendant in this case, it contends here, as it
did in the court below, that the governing body's position is well-taken.
The trial court believed that Township of Dover, supra,
deprived the governing body of standing in this case. In that case
the court said:
[T]he board of adjustment is an independent
administrative agency whose powers stem
directly from the Legislature and hence are
not subject to abridgement, circumscription,
extension or other modification by the
governing body. We also agree that a
necessary corollary of that principle is that
ordinarily the manner in which the board
exercises its exclusive statutory power is not
subject to monitoring by the governing body
and is therefore immune not only to direct
interference by the governing body but also to
the indirect interference of an action in lieu
of prerogative writs brought by the governing
body seeking judicial review of the board's
determinations. Our point of disagreement
turns on the fact that what the township is
here complaining of is not the manner in which
the board exercised its statutory power. Its
claim, rather, is that the board exceeded its
statutory powers and in so doing usurped the
function exclusively reserved to the governing
body by the enabling legislation. Thus, this
is not the ordinary variance case in which the
board of adjustment's action may be vulnerable
for such alleged misuses of discretion or
power, as, for example, an action taken
unwisely or imprudently, or without an
adequate factual basis in the evidence before
it, or without an adequate statement of
reasons or contrary to the governing body's
collective perception of what the public good
may permit or what the integrity of the zoning
ordinance may require. In our judgment,
review at the instance of the governing body
of such alleged errors in the exercise of
statutory authority and such disputes as to
the exercise of discretion would seriously and
perhaps irremediably undermine the board's
essential autonomy. We are therefore
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.
Thus, the Dover case appears to conflict with the dictum in
footnote 2 of Greenbrook, supra. However, we need not address that
apparent conflict since in our view a recognition of the governing
body's standing in this case would not be inconsistent with Dover.
Cf. Paruszewski v. Township of Elsinboro, _____ N.J. Super. _____
(App. Div. 1997).
We are not concerned here with a governing body challenging
the wisdom of a zoning board's action or the sufficiency of its
reasons for the action. Dover recognized that "an arrogation of
authority" which infringed upon the authority of the governing body
supported a finding of standing. Id. at 409. In the instant
case, we are also involved with an arrogation of authority by the
zoning board, Auciello v. Stauffer, supra, 58 N.J. Super. at 529,
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. Particularly where the zoning board, as
here, supports the position taken by its governing body, we see no
reason for depriving the governing body of standing to institute
and maintain the action in the Superior Court. As noted above,
Greenbrook, supra, provides additional support for our position in
that regard.
The judgment of the Law Division is reversed and the
resolution of the zoning board is vacated without prejudice to
defendant Schultz's right to reapply to the zoning board pursuant
to N.J.S.A. 40:55D-68 and -70b.
Footnote: 1 Any nonconforming use or structure
existing at the time of the passage of an
ordinance may be continued upon the lot or in
the structure so occupied and any such
structure may be restored or repaired in the
event of partial destruction thereof.
The prospective purchaser, prospective mortgagee, or any other person interested in any land upon which a nonconforming use or structure exists may apply in writing for the issuance of a certificate certifying that the use or structure existed before the adoption of the ordinance which rendered the use or structure 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. The
administrative officer shall be entitled to
demand and receive for such certificate issued
by him a reasonable fee not in excess of those
provided in R.S. 54:5-14 and R.S. 54:5-15.
The fees collected by the official shall be
paid by him to the municipality. Denial by
the administrative officer shall be appealable
to the board of adjustment. Section 59
through 62 of P.L. 1979, c. 291 (C.40:55D-72
to C.40:55D-75) shall apply to applications or
appeals to the board of adjustment.
Footnote: 2 The board of adjustment shall have the power to:
* * *
d. In particular cases and for special
reasons, grant a variance to allow departure
from regulations pursuant to article 8
[N.J.S.A. 40:55D-62 et seq.] of this act to
permit * * * (2) an expansion of a
nonconforming use . . . .
Footnote: 3 The board of adjustment shall have the power to:
* * *
b. Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by
any zoning or official map ordinance, in accordance with this act . . . . Footnote: 4 Plaintiff also contends the zoning board lacked jurisdiction for another reason. On January 26, 1995, the Deputy Code Enforcement Officers wrote to defendant Schultz advising him that the use of Lot 13 was illegal and that a municipal court complaint would be filed if the activity continued. Plaintiff argues the letter was a decision by an administrative officer which had to be appealed within twenty days under N.J.S.A. 40-55D-72a. The letter was not issued pursuant to N.J.S.A. 40-55D-68. It was not a decision, but rather simply a threat of an action in the municipal court. Furthermore, engrafting Section 72a into N.J.S.A. 40:50-68 would be inconsistent with the express language of the latter section which permits applications for certification of the legality of nonconforming uses to be made to the zoning board "at any time." Therefore, we are satisfied that the twenty day requirement on which plaintiff relies is irrelevant.