May a Board of Adjustment reconsider its 4-2 vote in favor of a “d” variance which resulted in denial of the variance so as to allow a seventh member of the Board the opportunity to read a transcript of the hearing, deliberate and vote on the application? That was the question before the Law Division for consideration in M & M Machine Shop v. Raritan Township Board of Adjustment, Docket No. HNT-L-654- 95 P.W., and Peter and Mary Whitney v. Raritan Township Board of Adjustment, Docket No. HNT-L-655-95 P.W., a consolidated litigation which was recently settled by the private parties with the approval of the Board and the Court. The authors will review the facts of the case and the applicable law and will then present their opinions on the issues involved.

M & M Machine Shop illegally operated for over 20 years a metal fabrication business in a detached garage behind a residence located on a lot situated in a residential zone. Peter and Mary Whitney, residents located approximately one-half mile away but on the same street, had been aware of this illegal operation for some time but had not contested or complained about the use as they could not hear or see it from their property. As a result of an unrelated dispute between the parties, Whitney notified the Township Zoning Officer of the operation and. as a result, a municipal court summons was issued. M & M Machine Shop plead guilty, paid a fine and, at the suggestion of the municipal court judge, applied to the Board of Adjustment for a “d” variance to allow it to properly establish the metal fabrication operation.

For the full article click here: Municipal Law Review (1999)