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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Zoning Questions and the Doctrine of Necessity

Q I  live in back of an establishment that was a restaurant for many years, but is now operated as a night club/discotheque. It is much noisier in its current use, and the noise continues through the early morning hours. People sometimes throw beer cans over the fence between the two properties into my yard. In researching what could be done about this intolerable situation, I discovered that night clubs and discotheques are not allowed in this zone. Therefore, I asked the zoning officer to enforce the ordinance prohibiting this use, but he did not do anything.

I then applied to the Board of Adjustment for an interpretation and enforcement of the zoning ordinance. After holding a hearing, the board rejected the application. The Board stated that the establishment was being run as a restaurant with an entertainment license, and that the Board has no jurisdiction to hear my application. Rather, the appropriate remedy was to appeal the grant of the entertainment license to the mayor and council. Is this correct?

A A  recent Appellate Division case concerning a similar fact pattern indicates that the Board of Adjustment does indeed have jurisdiction in such a situation. In Nouhan v. Board of Adjustment of the City of Clifton, 329 NJ Super. 283 (App. Div. 2007), the Court pointed out that, under NJSA 40:55-70 (a) and (b), the Board of Adjustment is authorized to hear appeals concerning the actions of an administrative officer concerning the enforcement of the zoning ordinance and it is also authorized to interpret the zoning ordinance. The Board of Adjustment is the only body with these powers, and therefore the Board must hear a claim that a zoning officer has not interpreted a zoning ordinance correctly or has not enforced such an ordinance.

The Court went on to state that NJSA 40:52-1 gives municipalities the power to license places of public entertainment, but “the issuance of a license to a regulated business does not authorize a use of land that is not permitted under the zoning ordinance... (The issuance of such a license) cannot authorize a use that is not permitted either by the zoning ordinance or a use variance.” The Court then reversed the dismissal of the plaintiff’s complaint to the Board of Adjustment and remanded the case back to the Board and the Zoning Officer.

In light of this case, then, it appears that the Board’s decision in your case may be incorrect as well.

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Q Our school budget was defeated, and now, of course, the council must meet with the board and certify the amount necessary for the school district in compliance with state law. However, on our six person council, four members have spouses employed in some role by the school district. This, of course, creates a conflict of interest for these four members, and we are left without a quorum. I assumed that the Commissioner of Education would therefore have to certify the necessary amount instead of the council, but I have been told that the “doctrine of necessity” may make it unnecessary to get the Commissioner involved in this way. What does this mean?

A The  doctrine of necessity applies to those situations where conflicts of interest of the members of a public body must be overlooked to permit that body to act. In the case of Allen v. the Toms River Regional Board of Education, 233 NJ Super. 642 (App. Div.1989), the Court considered this doctrine in the context of the certification of a defeated school district budget. Four of five governing body members had conflicts because their spouses were employed by the school district. The Court found that the conflicts should be overlooked so that the governing body could have a quorum and act.

In making this decision, the Court stated that the doctrine of necessity “will be invoked in those circumstances in which there is a pressing public need for action (that is, the matter cannot be laid aside until another date), there is no alternate forum which can grant the same relief and the body is unable to act without the members in conflict taking part.” The Court noted that, in the case of a defeated school budget, review can take place before the Commissioner of Education, but doing so deprives the public of “additional participation before the governing body and board of education in reshaping the budget…” Therefore, the Court found that invoking the doctrine of necessity was appropriate in such a situation.

This column is for informational purposes only, and is not intended as legal advice.

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