(dissenting).
I respectfully disagree with the majority. The decision of the trial court was controlled by and consistent with our opinion in Committee For a Rickel Alternative v. City of Linden, 214 N.J.Super. 631 (App.Div.1987), certif. granted 107 N.J. 136 (1987). In my view, the Rickel decision is sound and should be followed. I have carefully reviewed the entire record in light of the contentions raised and find that plaintiff Preakness Hill, Inc. failed to sustain its burden of convincing defendant Township Council of the Township of Wayne of its entitlement to the use variance.
In Evesham Tp. Bd. of Adj. v. Evesham Tp., 86 N.J. 295, 300 (1981), our Supreme Court declared that under the present Municipal Land Use Laws, N.J.S.A. 40:55D-1 et seq., “the Legislature intended that where the action of a board of adjustment is challenged on appeal, the governing body is to have authority to make a de novo review of the record established before the board and reach its own decision in the matter____” Consequently, since an applicant seeking relief from a public body has the burden of demonstrating its entitlement to relief, an applicant seeking a use variance has the burden of convine*185ing the governing body that it is entitled to the use variance. Rickel, 214 N.J.Super. at 636. The burden properly imposed upon such an applicant is to obtain a majority vote of the full authorized membership of the governing body on appeal to sustain the variance.1 Id. at 636-637; N.J.S.A. 40:55D-17e.
Particularly noteworthy in this respect, as the Rickel court emphasized, is the language of N.J.S.A. 40:55D-17e prior to the 1984 amendments of the Municipal Land Use Law. The prior statute provided that:
The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse, remand or modify any final action of ... [the board of adjustment], (emphasis added).
Under that prior law, a tie vote by the governing body resulted in an affirmance of the board of adjustment’s grant of a variance. The Legislature, by amendment of the statute by L.1984, c. 20, § 6 deleting the language that resulted in a tie vote affirming the board, undoubtedly manifested a contrary intent. See Rickel, 214 N.J.Super. at 637. Since the current statute now requires a vote of a majority of the full authorized membership of the governing body to affirm the grant of a variance, it is reasonable and logical to infer that the Legislature intended that less than a majority vote of the full authorized membership constituted a denial of the variance by the governing body acting in its de novo capacity. Judge Green-berg’s comments in Rickel on this point are instructive and worthwhile repeating:
This conclusion seems particularly reasonable in view of the fact that Eves-ham was decided in 1981 so that when the 1984 amendment was enacted the *186Legislature was presumably aware that in zoning appeals the governing body acted de novo. See Brewer v. Porch, 53 N.J. 167, 174 (1969). In that situation the Legislature could have reasonably inferred that an applicant for a variance on an appeal to the governing body would have the burden to obtain a majority of its full authorized membership. In that case, a tie vote would reverse a decision of the board granting a variance. [Rickel, 214 N.J.Super. at 637].
Furthermore, N.J.S.A. 40:55D-17c is inapplicable under the facts present in this case. N.J.S.A. 40:55D-17c, in pertinent part, provides that:
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below ... unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the board.
As the Rickel court noted, the Legislature did not provide that a failure of the governing body to vote to affirm, remand or reverse by an enhanced majority within the 95-day decision period constituted an affirmance of the variance. It simply provided that the failure to hold a hearing, conclude a review of the record and render a decision within the 95-day period constituted an affirmance of the action of the board of adjustment. The purpose of N.J.S.A. 40:55D-1.7c is to require expeditious disposition of appeals by the governing body, Lizak v. Faria, 96 N.J. 482, 492 (1984); Rickel, 214 N.J.Super. at 638, not to enable an applicant to obtain a use variance by forfeiture of authority by the governing body.
Here, a hearing was conducted, a review of the record was concluded, and the decision was rendered within the prescribed time. The requirements of N.J.S.A. 40:55D-17c have therefore been complied with. Since the applicant has the burden of convincing the governing body of its entitlement to a variance, such a variance should not be rendered “approved” by virtue of a decision by the governing body of less than the enhanced majority, when such decision was rendered within the 95-day decision period.
Finally, the Rickel court’s construction of the statute is consistent with the clear policy of our State to allow new *187nonconforming uses “only sparingly and with great caution.” Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 275 (1967). The granting of variances for nonconforming uses, implicating State policy considerations, is properly left to the State’s elected officials, i.e., the governing body. Consequently, I hold to the view that an applicant for such a variance should properly bear the burden of convincing the governing body of its entitlement by a majority vote of the full membership. This policy would become frustrated and the zoning plans of the various municipalities throughout the State undermined by allowing an applicant for a variance to succeed on appeal without carrying an enhanced majority voting to grant such variance. I cannot conceive that the Legislature intended such a result when it enacted the present Municipal Land Use Law.
Here, the Township Council voted four to three to reverse the decision of the board of adjustment granting the variance. Thus, plaintiff fell far short of an enhanced majority vote of the Township Council required for the grant of the variance. Without that enhanced majority vote, a non-conforming use variance should not be granted.
Accordingly, I would affirm the judgment of the Law Division under review.
This conclusion is further supported by N.J.S.A. 40:55D-70d which allows the board of adjustment to grant a variance only if five of the seven members of the board agree to it. "Inasmuch as the statutory authorization to the council in N.J.S.A. 40:55D-17a is to entertain appeals from variances granted pursuant to NJ.S.A 40:55D-70d, the requirement of a majority vote of the full authorized membership of the governing body on the appeal to sustain the variance is consistent with the Legislature’s requirement for an enhanced majority to approve it in the first instance." Rickel, 214 N.J.Super. at 636-637.