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D. Lobi Enterprises Inc. v. Planning/Zoning Board of the Borough of Sea Bright

408 N.J. Super. 345, 974 A.2d 1134 (App. Div. 2009)

ZONING — Even though a nine member joint planning and zoning board may hear an application for a “d” variance, the required vote is still five out of seven and not five out of nine despite the fact that the statutory non-voting members on the board may have been replaced by alternate members who are not personally precluded from voting.

A property owner operated a beach club in a B-3 zone and received a variance to operate a restaurant there as well. The owner the applied for a “d” variance to expand this non-conforming use. The owner’s application was heard by the municipal planning board serving as the zoning board of adjustment. Pursuant to N.J.S.A. 40:55D-25(c), a nine-member planning board may serve as the municipality’s zoning board of adjustment even though zoning boards have only seven members. In order for a “d” variance to be approved, there must be five affirmative votes. In this case, the planning board, sitting as the zoning board, held extensive hearings on the owner’s variance application. The mayor and council member, who severed as Class I and Class III members of the board, were precluded by statute from participating in the consideration of the application. The zoning board was left with eight members, including two alternates. The property owner maintained that all eight members, including both alternates, were entitled to vote on the application so that the owner would only a need a 5/8ths vote in order to have its application granted. The zoning board’s attorney advised the board that only seven members could vote, so that a 5/7ths vote was needed to approve the variance application. In order to preserve the issue on appeal, the zoning board allowed all eight members to vote on the application. The vote was five in favor and three opposed to the application, with one of the approvals cast by the second alternate. The zoning board discounted the second alternate’s vote, leaving a four to three vote, one shy of the required five affirmative votes. Therefore, the variance was denied.

The property owner sued, arguing that all the board members, including the alternates, were entitled to vote on the variance application. The lower court disagreed, finding that only seven members could vote and that the alternates could not replace the Class I and Class III members for a vote on a class “d” variance application. The property owner appealed as to the voting issue, but the Appellate Division affirmed, noting that a supermajority vote of five out of seven members is required to approve a “d” variance that would expanding a non-conforming use because it is consistent with strong legislative policy that favors land use planning by ordinance and not by variance. It also noted that the statute provides that when a nine-member planning board serves as a zoning board, the mayor (a Class I member) and a council member (a Class III members) are not permitted to vote on the application. That would leave seven voting members. Thus, the rationale for disqualifying the two members from hearing class “d” variance applications was that a zoning board’s vote on a “d” variance can be appealed to the municipal governing body and it would be inappropriate for the mayor and council member to review their own decisions. The question, however, was: if those two members were disqualified from voting, can the alternates sit in the place of the mayor and council member so that up to nine members may vote on a “d” variance?

The Court found that the alternates could not sit in the place of the Class I and Class III members. It noted that the spirit of the statute requires a heightened approval requirement for class “d” variance applications, and that an applicant would have an unfair advantage in class “d” variance applications before a planning board/zoning board of nine members because it would only be required to obtain five out of nine votes, as opposed to the five out of seven contemplated by the statute.

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