Darrell v. Governing Body of Township of Clark

82 N.J. 426 (1980) 413 A.2d 610

EDWIN S. DARRELL AND JOHN SARAFIN, PLAINTIFFS-APPELLANTS,
v.
GOVERNING BODY OF THE TOWNSHIP OF CLARK; EXXON CORPORATION; BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CLARK: JOSEPH SWEENEY, BUILDING INSPECTOR OF THE TOWNSHIP OF CLARK, DEFENDANTS-RESPONDENTS.

The Supreme Court of New Jersey.

Argued March 3, 1980. Decided April 14, 1980.

Paul R. Williams, Jr., argued the cause for appellants (Williams & Flynn, attorneys).

Arnold M. Smith argued the cause for respondent Exxon Corporation.

John Pisansky argued the cause for respondent Board of Adjustment of the Township of Clark (Magner, Abraham, Orlando, Kahn & Pisansky, attorneys).

Joseph J. Triarsi argued the cause for respondents Governing Body of the Township of Clark and Joseph Sweeney (Pisano and Triarsi, attorneys).

PER CURIAM.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in its opinion reported at 169 N.J. Super. 127 (1978). For the guidance of the bench and bar we add the following comments.

This matter, brought under the old Municipal Planning Act, N.J.S.A. 40:55-1 et seq., involved the grant of a variance from a special exception condition contained in a municipal zoning ordinance. The new Municipal Land Use Law (Law), N.J.S.A. 40:55D-1 et seq., now defines a special exception as a conditional use. N.J.S.A. 40:55D-3. Under Article 8 of the Law, conditional uses are granted by a planning board rather than by a board of adjustment. N.J.S.A. 40:55D-67. However, the Law vests a board of adjustment with the power to grant variances. N.J.S.A. 40:55D-70. By L. 1979, c. 216, subsection (d) of N.J.S.A. 40:55D-70 was amended to provide for the grant of a variance "to allow departure from regulations pursuant to Article 8 of this act, including, but not limited to, allowing a structure or use in a district restricted against such structure or use." The statement attached to the Bill enacted as L. 1979, c. 216, sets forth that the amendment to subsection (d) was made to "require that any variance for a conditional use be processed as a ``d' (special reasons) variance." It is clear, therefore, that under the Municipal Land Use Law a board of adjustment would have the power to grant a variance in the situation here presented.

For affirmance — Justices SULLIVAN, PASHMAN, SCHREIBER, HANDLER and POLLOCK — 5.

For reversal — None.