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Vuocolo v. Borough of Point Pleasant Beach Zoning Board of Adjustment

A-1724-97T1 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING — Where an application is clear as to who owns the property, it is not improper for duly appointed surrogates to prosecute a variance application in the owner’s place.

The mayor of a municipality owned a piece of property located in a commercial zone. An application was filed with the zoning board for a minor subdivision of the lot and for a use variance to construct a residential duplex unit thereon. The application listed the mayor’s son and daughter as applicants and also contained the mayor’s written authorization to them to submit the application. The application was approved and a resident of the municipality appealed the board’s decision to the municipal council. When the municipal council dismissed the appeal, the protester took the matter to the Law Division. This lower court set aside the use variance and the subdivision approval, but the Appellate Division reversed.

In essence, the protester put forth two reasons why the approvals should have been set aside: (a) because the application was filed in the name of the mayor but was, in fact, granted in the name of his children although there was no assignment of interest or other demonstration of the children’s interest in the property; and (b) because a conflict of interest existed between the mayor and the members of the zoning board, who serve at the pleasure of the mayor.

Both the lower court and the Appellate Division rejected the conflict of interest argument, concluding that under case law there would have been no conflict of interest had the mayor himself filed the application for the variance and subdivision. With respect to the second argument, the applicable statute defines an applicant as a “developer submitting an application for development,” and another statute defines a developer as the “legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.” The protester contended that the children did not have “an enforceable proprietary interest in ... land” within the meaning of the statute. While the lower court responded favorably to this argument, the Appellate Division found the position to be overly technical. To the Appellate Division, it was perfectly clear from the record that the mayor was the real party in interest on the application and that his children were merely acting as his surrogates in seeking relief from a zoning ordinance. It was the mayor himself who had submitted the initial application to the board. Thereafter as a part of the application and with no attempt to conceal his ownership of the property, the mayor signed an authorization permitting his children to prosecute the application in his place. Therefore, the Appellate Division considered it fairly inferable that the board understood that the mayor was the true “developer” of the property. Lastly, the Appellate Division believed that the lower court should have given the board greater deference in the circumstances presented, especially where requiring the mayor to reapply, as the lower court ordered, would constitute a waste of time and resources. With these procedural matters out of the way, the Appellate Division reversed and remanded the matter to the lower court for a trial on the merits of the protester’s complaint.


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