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Township of Stafford v. Stafford Township Zoning Board of Adjustment

154 N.J. 62, 711 A.2d 282 (1998)

ZONING; NOTICE; STANDING—Zoning board applicants seeking a certification of prior non-conforming use must give notice to adjacent landowners. A municipality has standing to challenge the board’s determination in those rare circumstances where a zoning board exceeds the scope of its authority.

The issues in this case were whether a municipal governing body has standing to challenge the certification of a nonconforming use by its zoning board and whether an applicant seeking certification of a nonconforming use must comply with the notice requirements of the Municipal Land Use Law. The issues arose out of a hearing held before the zoning board of adjustment at the request of a property owner to determine whether or not its sale, purchase, and repair of automobiles on its land was a pre-existing, nonconforming use. The property owner never provided notice of the hearing to owners of property within 200 feet of the lot in question and did not publish a notice in an appropriate newspaper. The municipality’s deputy code enforcement officer opposed the property owner’s application. The zoning board approved the property owner’s application. The municipality then filed a complaint alleging that the property owner should have sent notice to its neighbors, but the lower court found that the municipality had no standing because the matter before the zoning board was so narrow in scope that there was not an actionable risk to the character of the district. The Appellate Division, however, ruled that notice to neighbors should have been given, and reversed and vacated the zoning board’s certification. It further found that the municipality had standing to challenge the board’s certification based on “arrogation of authority,” equating injury to the municipality’s citizens with interference with the municipality’s statutory authority.

The question as to whether an applicant for a nonconforming use certification must provide notice pursuant to the Municipal Land Use Law was an issue of first impression. Under that law, notice is required in connection with an “application for development.” The statute defines that phrase as “the application form and all accompanying documents required by ordinance for approval for a subdivision plat, site plan, plan development, conditional use, zoning variance, or direction for the issuance of a permit… .” “Variance” is defined as “permission to depart from the literal requirements of the zoning ordinance… .” Based on the plain language of the notice statute, it would appear that the law does not require applicants seeking certification of a prior nonconforming use to give notice to adjoining landowners.

A different section of the Municipal Land Use Law requires that applicants for expansion of a nonconforming use provide notice to adjoining landowners. Consequently, under the facts of the case, the Court discovered the possibility that what may initially appear to be an application for certification of a prior nonconforming use could actually turn out to be an application for expansion of a nonconforming use. Consequently, the Court, following its own established rule of statutory construction requiring that it interpret a statute “consonant” with the probable intent of the draftsman “had he anticipated the situation at hand,” ruled that in view of the imperfect drafting, the legislature intended that notice be given under the circumstances presented. Furthermore, applying a long standing precedent, the Court determined that its holding should apply retroactively to the property owner.

With respect to the standing issue, the Court 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. 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.” Nonetheless, the Court views the matter quite differently when it encounters an arrogation of authority. The Supreme Court determined that the zoning board exceeded its authority in hearing the petitioner’s application and in doing so threatened the public’s interest in enforcement of the Municipal Land Use Law. Sensitive to the legislature’s intent that the governing body generally should not interfere with or influence a zoning board’s decision with respect to nonconforming use certifications, the Court limited its decision to granting standing to a municipality in those rare circumstances where a zoning board exceeds the scope of its authority (thereby arrogating the governing body’s authority) if such an action threatens either the public interest or enforcement of the law itself.


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