In dealing with the issue as to whether the denial in 1955 precluded the later application, Justice Burling's opinion stated generally that " res judicata is applicable to actions heard by a zoning board of adjustment." See 2 Davis, supra, at p. 564; cf. Stafford Smith v. Zoning Bd., etc., Bor. of Madison, 59 N.J. Super. 553, 559 ( App. Div. 1960), certif. denied, Smithv. Kirkpatrick, 32 N.J. 352 (1960). He stressed that the proceedings were "formal and adversary," that the function of the board in deciding the application was "essentially factfinding, as opposed to policymaking," and that the board was confined in its action to evidence and facts which were duly made part of the record.
Additional decisions from other jurisdictions support our conclusion. In Stafford Smith v. Zoning Board of Adjust. of Madison, 158 A.2d 223 (N.J. 1960), a recently appointed fifth member of a zoning board disqualified himself in regard to a hearing on an application for a variance, since he had not participated in the case from its inception. The board's vote in that case was 2-2.
Messrs. Shanley Fisher and Mr. J. William Barba for the respondents. See same case below: 59 N.J. Super. 553. Denied.
Remonstrators have cited cases from other jurisdictions which have held that where a majority of the membership of a board fails to vote in favor of either granting or rejecting a proposition, the proposition is deemed denied. Cited are Albini v. Board of Appeals (1964), 41 Misc.2d 783, 246 N.Y.S.2d 506; Montgomery Co. Board of Appeals v. Walker (1962), 228 Md. 574, 180 A.2d 865; and Stafford Smith v. Zoning Board of Adjustment of Madison (1960), 59 N.J. Super. 553, 158 A.2d 223. These cases do not consider the res adjudicata effect of such votes upon a subsequent consideration by the Board.
The failure to obtain the statutory requirement was tantamount to a denial. Miller v. Boonton Tp. Bd. of Adj., 67 N.J. Super. 460, 469 (App.Div. 1961); Smith v. Madison Bd. of Adj., 59 N.J. Super. 553, 558-559 (App.Div. 1960), certif. den. sub nom.
Compare Mansfield Swett, Inc., v. Town of West Orange, 120 N.J.L. 145, 160 ( Sup. Ct. 1938). Cf. Stafford Smith v. Zoning Bd., etc., Madison, 59 N.J. Super. 553, 560 ( App. Div. 1960); Highpoint, Inc. v. Bloomfield Planning Board, 80 N.J. Super. 570, 574-575 ( Law Div. 1963), reversed 87 N.J. Super. 58 ( App. Div. 1964). Justice to all concerned requires a remand by this court to the board for a re-examination of the road plans and to make essential findings within the intendment of the township land subdivision ordinance as distinguished from the zoning ordinance.
Even if the application is closely similar to a previous one, or identical with it but it is alleged that the surrounding circumstances have changed or that experience has shown the prior denial was error ( cf. Gruber v. Mayor etc., of Raritan Township, 39 N.J. 1, 12 (1962)), it is within the discretion of the board whether to reject the application on the ground of res judicata, and the exercise of that discretion may not be overturned on appeal in the absence of a showing of unreasonableness. Lubliner v. Board of Alcoholic Beverage Control, 33 N.J. 428, 438 (1960); Smith v. Zoning Board of Adjustment, 59 N.J. Super. 553, 556-560 ( App. Div. 1960); St. Cassian's Catholic Church v. Allen, 77 N.J. Super. 99, 108-109 ( Law Div. 1962), reversed on other grounds 40 N.J. 46 (1963). It is not necessary for us to decide in this case whether res judicata may ever be raised for the first time on appeal, for, even if it may be, the facts in this case would not warrant it.
Before a decision may be rendered, the board, sitting as a body, must hear the matter as though on original application. See Kempner v. Edison Tp., 54 N.J. Super. 408 ( App. Div. 1959); Stafford Smith v. Zoning Bd., etc., of Madison, 59 N.J. Super. 553 ( App. Div. 1960). Thus, the action of the board in February 1963 must be declared void because of the lack of hearing by the newly composed board.
The rule enunciated in Russell v. Tenafly, supra, was not intended to be so immutable or definitive as to preclude such a determination. Cf. Stafford Smith v. Zoning Board, etc., of Madison, 59 N.J. Super. 553, 559 ( App. Div. 1960). In any event, upon the passage of chapter 138, supra, the plaintiff became entitled to an adjudication as to its effect upon the prior restriction.
It is now clear that the failure to obtain three affirmative votes, as required by R.S. 40:55-41, must be deemed a denial of an application for a variance, even when the vote is a tie, and the applicant may seek review accordingly. Smith v. Madison Zoning Board of Adjustment, 59 N.J. Super. 553, 558-559 ( App. Div. 1960), certification denied Smith v. Kirkpatrick, 32 N.J. 352 (1960). Dixon concedes that the legal effect of a 2-1 vote in favor of a variance is a denial.