By David Serlin
In a municipality having a population of 15,000 or less persons, a nine-member planning board, if designated by ordinance, can grant the same relief as a zoning board of adjustment; however, when considering a request for a variance pursuant to N.J.S.A. 40:55D-70(d), the Class I member, who is the mayor or municipal manager, depending on the form of government, and the Class III member, who is a member of the governing body, are not permitted to participate in the hearing on the variance application. Up to four alternate members may also be appointed by a governing body.
The Municipal Land Use Law requires that in the case of a variance pursuant to N.J.S.A. 40:55D-70(d), an approval requires the “affirmative vote of at least five members.” For this reason, when only five members are present continuances are routinely granted in fairness to an applicant.
At a recent planning board meeting an applicant elected to proceed with the hearing on a “d” variance when only five eligible members were present. At the conclusion of the hearing the applicant’s attorney, being unsure if there would be five affirmative votes, requested that the hearing be continued so that the two absent members would have an opportunity to listen to the recording of the hearing and participate pursuant to N.J.S.A. 40:55D-10.2. The board granted the request. The board, which has two alternate positions, has two vacancies. In the succeeding month one member certified to having listened to the tape recording of the hearing. Upon being alerted to the fact that only six members would participate in the hearing, the applicant’s attorney advised that the applicant was entitled to have the application reviewed and acted upon by the full seven-member board.
The Municipal Land Use Law does not require that a full board participate in a hearing on a variance pursuant to N.J.S.A. 40:55D-70(d), nor is there any precedent for this proposition. Circumstances may simply prevent the optimum situation where seven members are eligible to vote on an application for a “d” variance.
In Collins v. Presbyterian Church of Toms River, 2018 N.J. Unpub. LEXIS 105 (App. Div. 2018), an unpublished opinion, the appellate panel discussed the voting requirements for a “d” variance. In that case the Presbyterian Church of Toms River (“Church”) sought a use variance to lease a portion of its parking lot to enable an automobile dealership to park cars. With six members of the zoning board of adjustment present, the Church proceeded with its application. After four members had voted in favor of approving the application and one member voted against, the sixth member abstained because of a perceived conflict of interest that arose during the hearing. The Church’s attorney advised that he would not have proceeded had he been aware that only five members would be eligible to vote on the application. He requested that the vote be cancelled, and the hearing adjourned so that another member could listen to the recording of the hearing. The request was granted and at the next meeting with the participation of the member who had certified to listening to the recording of the hearing, the use variance was granted with the vote being five in favor, one opposed and one abstention. The Appellate Panel viewed favorably the trial court’s determination that the case did not involve an effort to manipulate the vote. Rather it involved the effort by the board to provide the Church with “a fair and impartial method to resolve this unusual development and at the same time to give the applicant what it originally represented it would have: [t]he benefit of a vote by[six] eligible members of the Board.”
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your particular situation and any specific legal question you may have.