Condominium Owners’ Fraud Claims Dismissed
Case: Rumpeltin v. Timber Valley at Ramsey Condominium Association, Chancery Division, Bergen County, BER-C-326-06, Nov. 3, 2006.
In a challenge by condominium owners to parts of a 2005 ordinance and the condominium documents that restricted the sale and rental of their units, the owners’ application for injunctive relief was denied. At the same time, the court granted the municipal defendants’ cross-motion both to dismiss the fraud claim, and also to dismiss the tort claims, apart from one section, pending service of appropriate notice under the Tort Claims Act. The owners claimed they had an understanding when they bought their low– to moderate-income units that they could choose to live in them or rent them to qualified individuals and that these units would be deregulated by 2017. The owners demanded interim relief to restrain the enforcement of the restrictions on the rental of the units. The owners failed to establish entitlement to injunctive relief, particularly on the element of reasonable probability of success on the merits, because the ordinance purportedly was enacted to allow the municipal defendants to fulfill their constitutional duty to provide affordable housing. The reason that the owners’ fraud claims failed was that no case law allows fraud claims based on legislative action. The remaining counts were transferred to the Law Division, which handles such actions.

No Conflict of Interest in Mixed-Use Approval
Case: Meyer v. MW Red Bank, LLC, Law Division, Monmouth County, L-1647-06, Decided Nov. 2, 2006.
The Law Division affirmed the Zoning Board’s approval of variances for the applicants’ construction of a mixed-use development. The objector’s complaint was thrown out. An earlier decision had resulted in the trial court’s dismissal of the objector’s abuse-of-discretion count against the Board. In the other count, the objector charged that the Board’s vice-chairperson had a disqualifying conflict of interest due to her father’s “of counsel” position with a law firm whose partner– who was the Board chairman and who had recused himself– had represented a principal of the applicant. The court decided that the chairman’s conflict of interest was not automatically imputed to the vice-chairperson, the vice chairperson’s father had never represented the applicant’s principal, and the vice-chairperson was not an attorney and had never represented the applicant or its principals. Further, there was no past representation of the applicant and no current representation of any of its members or entities by the law firm. On account of the objector’s inaction in raising the alleged conflict of interest, he was equitably estopped from bringing up the issue.

Ordinance Creating Two Subzones Validated
Case: Lincoln North Development Corp. v. Town of Kearny, Law Division, Hudson County, L-1-05, Decided Oct. 27, 2006.
An action to invalidate a zoning ordinance that created two subzones in one industrial area of the Town was dismissed. Several owners of property in both subzones raised the issue. The major difference between the two subzones under the ordinance is that truck terminals are not allowed as a principal use in one of the subzones. Previously, the Law Division had rejected a few other claims on summary judgment. Following a plenary hearing on the remaining issues, the court concluded that the ordinance advanced four purposes of the MLUL, and that the ordinance was substantially consistent with the Town’s master plan and a re-examination report of the master plan, including its land use and planning elements. Also, the court declared, the balance between warehousing and distribution in one subzone and the continuing truck facilities in the other subzone was a valid zoning purpose addressed by the ordinance. Finally, the court found that there was no constitutional violation, that the boundary between the two subzones was not irregular and was supported by a rational basis, and that the property owners failed to establish that their properties had suffered substantial loss of value or that they had been prosecuted for violating the ordinance.

Shopping Center Sign Rules Survive Challenge
Case: Passfield Properties v. Township of West Caldwell, Appellate Division, A-1306-05T5, Decided Dec. 26, 2006.
The courts turned back a shopping center owner’s challenge to the signage provisions of a local zoning ordinance and the Planning Board’s Shopping Center Sign Standards. The ordinance required that signage at any shopping center in the Township be uniform in color, while the Sign Standards specified a different color and maximum height for signs at each shopping center. In affirming the trial judge’s summary judgment for the Township and its Planning Board, the Appellate Division held that conflicting evidence about the ordinance’s alleged violation of the MLUL involved a purely legal issue that did not render a summary judgment inappropriate. The Court also found that the ordinance did not violate the uniformity requirement in the MLUL and instead promoted a desirable visual environment. In the Court’s opinion, the Board’s Sign Standards did not stem from an unwarranted delegation of legislative duties from the Township’s governing body to the Planning Board.

Stop Construction Order Upheld
Case: T.K. Associates v. Township of Franklin, Appellate Division, A-3534-05T5, Decided Dec. 29, 2006.
The Law Division dismissed the applicant’s complaint against the Township and the County Construction Board of Appeals in an action challenging an order to stop construction of a residential building, and the Appellate Division affirmed this dismissal. The applicant had obtained a construction permit to install a new roof on a one-story garage and had gotten approval from the zoning officer for a second set of plans that depicted a two-story garage, but neither the Township construction officer nor the zoning officer had approved the applicant’s third set of plans showing a residence. The Appellate Division rejected the applicant’s argument that the Township and the County Construction Board of Appeals were estopped from issuing the stop construction order in light of the zoning officer’s approval of the second set of plans. The applicant failed to obtain the required construction permit, and the Court found no evidence to establish that the zoning officer’s conduct reasonably could have misled the applicant and caused it to build the residence to its detriment.

City Beats Challenge to Wal-Mart Opening
Case: Albano v. City of Vineland, Appellate Division, A-3711-05T1, Decided Dec. 14, 2006
The Appellate Division upheld a lower court summary judgment for the City, the City Council and the Planning Board against the objectors’ challenge to Vineland’s redevelopment plan ordinance that permitted a Wal-Mart store to open. The trial court correctly rejected the objectors’ arguments (1) that a City Council member had a conflict of interest that required him to recuse himself based on his son’s 15-year employment as a Wal-Mart cashier in Colorado; (2) that the adoption of the ordinance violated the master plan, making it arbitrary and capricious; and (3) that the City Council violated the Open Public Meetings Act by not recording the member’s comments about his son’s employment in the minutes of the City Council meeting.

Both Sides Lose in Land Use Conflict
Case: St. Gabriel’s Syrian Orthodox Church v. Planning Board of the Borough of Haworth, Law Division, Bergen County, BER-L-5146-05 and BER-5660-05, Decided December 5, 2006.
There were no winners in this land use dispute over the applicant’s plan to build a house of worship in a residential zone where churches are permitted as conditional uses. The Planning Board’s actions were declared void, and the applicant’s claims were dismissed because it failed to prove that the municipality, through its zoning regulations or the conduct of its land use agents, had discriminated against the applicant or had unduly burdened its rights. The Planning Board had approved the proposed conditional use but denied the application for site plan approval and a variance for maximum pavement coverage. In overturning the Planning Board’s actions, the court ruled that the Board had no jurisdiction because the applicant also needed variances under N.J.S.A. 40:55D-70(d) for maximum height and parking, and because the Board of Adjustment, therefore, had to hear the application. Another reason why the Planning Board’s actions could not be accepted was that Haworth’s Mayor had taken part in the proceedings despite a conflict of interest. St. Gabriel’s main argument that it deserved relief simply because it wanted to build a church that would advance the public interest also was rejected.

Applicant Can’t Build Homes on Unimproved Road
Case: Manton v. Borough of Atlantic Highlands Unified Planning Board, Appellate Division, A-6699-04T2,  Dec. 1, 2006
For substantially the same reasons, the courts agreed with the Planning Board’s decision to deny the applicants’ request for major subdivision approval. A variance was required because two of their three proposed lots fronted only on an unimproved road and because they did not propose to improve the road. The Planning Board concluded that the applicants had not offered sufficient evidence to allow the construction of homes that did not front on an improved road. The Law Division was right to declare that the applicants failed to meet their heavy burden of proving that the evidence before the Board was so overwhelmingly in their favor as to render the Board’s decision arbitrary, capricious or unreasonable.

Developer Rebuffed in Action Against Borough Council Case: Intellect Real Estate Development Co., L.L.C., v. Municipal Council of the Borough of Bloomingdale, Appellate Division, A-265-05T3, Decided Nov. 14, 2007.
After losing a Law Division judgment in its action against the Municipal Council and the Borough’s Mayor, a developer took its case to the Appellate Division, only to get the same result for almost the same reasons. The appeals court ruled that the trial judge (1) properly decided that the Council’s resolution reversing the Board of Adjustment’s grant of a use variance to the developer was void because the Council had violated the Open Public Meetings Act; (2) properly remanded the appeal of the variance to the Municipal Council to proceed anew, and (3) correctly stated that the developer’s challenge to the Mayor’s participation in the Council’s proceedings, which was based on an alleged conflict of interest, was moot because the Mayor would not participate in any future proceedings. The panel rejected the developer’s contention that the correct remedy for the OPMA violation was to declare that the Board of Adjustment’s grant of the variance was automatically approved in accordance with the MLUL and that the Mayor’s alleged conflict of interest tainted all of the Municipal Council’s past and future actions.

Eminent Domain Ordinances Upheld
Case: Jersey Urban Renewal, LLC v. City of Asbury Park, Appellate Division, A-6579-04T1, Decided Dec. 18, 2006.
The Appellate Division affirmed a Law Division order in consolidated actions that challenged the validity of four ordinances. The ordinances authorized the City to use its eminent domain power to acquire title to the landowners’ properties, which were located in areas in need of redevelopment. In the panel’s opinion, the lower court properly dismissed the landowners’ challenge to the first two ordinances because a member of the City Council did not have a conflict of interest when he voted on them. The Law Division also was correct in dismissing the landowners’ challenge to the second two ordinances because it was rendered moot by the decision to uphold the first two ordinances. As for the City’s counterclaim and third-party complaint for condemnation, the Law Division also acted properly in dismissing them on procedural grounds Finally, the Law Division was right again in dismissing the landowners’ request for attorneys’ fees.

Bulk Variances Grant Reversed in Part
Case: D’Amato v. City of Clifton,Law Division, Passaic County, PAS-L-4364-03, Decided Oct. 23, 2006.
A decision on remand by the Zoning Board of Adjustment in a bulk variances dispute was affirmed in part and reversed in part. In a 2002 resolution, the Board had granted in its entirety the property owner’s application for bulk variances for a second-story addition, a rear addition, a deck, and a front porch enclosure. Although the owners’ application for a building permit included plans that showed a cantilever, the permit issued did not mention the cantilever. Construction was substantially completed when the municipality issued a stop-work order on the grounds that the cantilever infringed the approved front-yard setback and thus violated both the building permit and the 2002 resolution. In the earlier remand order, the law court required the Board to decide whether its grant of the bulk variances had included the cantilever and, if not, whether such relief should be granted. On remand, the Board re-affirmed its approval of a front-yard setback without a cantilever but also rescinded its prior factual findings and concluded that, beyond that, the owners were not entitled to any of the relief granted in the 2002 resolution. Because the Board exceeded the scope of the remand order and because its conduct was deemed a gross injustice to the owners, its ruling was reversed to the extent that it rescinded the relief granted in 2002. The court found no merit, however, in the owners’ claim that the original resolution allowed them to construct the cantilever. The Board’s denial of a bulk variance under the MLUL for the as-built cantilever was affirmed.

Courts OK Variances for Single-Family Home
Case: Pierro v. Borough of Hopatcong Board of Adjustment, Appellate Division, A-1844-05T2, Decided Nov. 22, 2006.
A lower court order upholding the grant of variances by the Board of Adjustment to a developer was affirmed. The developer sought to build a single-family home, which required variances for maximum lot coverage, for minimum setback from a lake, and for building in a steep critical slope area. Despite the concerns of the neighbor who brought this action, the developer’s notice was sufficient, even though it did not list all of the variances that the developer required, and the Board had jurisdiction to hear the application. Further, there was sufficient evidence of hardship to support the law court’s deference to the Board’s decision.

Personal Hardship Not Relevant to Historic Preservation
Case: Citizens for Historic Preservation, Inc. v. Sheehan, Appellate Division, A-5106-03T2, Decided July 26, 2005
The Appellate Division reversed the Law Division’s affirmance of the Zoning Board of Adjustment’s resolution allowing the historic Ocean City Lifesaving Station to be partially demolished and its core structure to be moved to another location. The Zoning Board erred in considering the property owner’s personal financial hardship as a factor when it decided whether the demolition permits should have been granted. Hardship was not listed in the City’s historic preservation ordinance as a relevant factor to be considered when determining whether a permit application should be granted, the Court pointed out. Hardship would come into play only if the property owner sought demolition as a matter of right after the denial of permit applications. It was beyond the Zoning Board’s powers to consider hardship at this juncture.

Landowners Lose Redevelopment Challenge
Case: Gallenthin Realty Development, Inc. v. Borough of Paulsboro, Appellate Division, A-6941-03T1, and A-222-04T1, Decided July 14, 2006
The Appellate Division affirmed a final judgment by the Law Division that dismissed the landowners’ complaint challenging the designation by ordinance of their property as an area in need of redevelopment in accordance with the Local Redevelopment and Housing Law. The landowners’ 63-acre property was vacant, was in a section of the Borough that contained residences and industrial development, was next to the Delaware River and Mantua Creek, was previously used for dredging activities, and was the site of a railroad spur. In their appeal, the landowners raised several arguments against the application of the LRHL to their property, but the appeals court concluded that the Borough, the Planning Board, and the Redevelopment Agency had jurisdiction to adopt the ordinance. Further, the panel found that the defendants had followed the procedures contained in the LRHL, and that the record supported the designation of the landowners’ property as an area in need of redevelopment under the LRHL, and that the adoption of the ordinance was not arbitrary and capricious..

Board’s Denial of Use Variance Overturned
Case: Vazquez v. Town of Harrison Zoning Board of Adjustment, Appellate Division, A-562-05T1, Decided July 18. 2006
The Zoning Board of Adjustment was not justified in denying a use variance to the owner of a multi-family home. The owner obtained a building permit in 1981 for a basement apartment in his four-family home. Since 1982, the home was assessed by the municipality and registered with the Department of Community Affairs as a six-family home. In 2002, the owner was cited for illegal occupancy and construction without permits, and his challenge to the citation was stayed pending the Zoning Board’s decision on his application for a variance to continue his use of a six-family home. The zoning ordinance allowed only two-family homes. In reversing and remanding a summary judgment for the Board, the Appellate Division rejected the trial court’s findings and declared that the record did not establish the zoning in effect in 1981 and did not permit a finding that the building permit was erroneously issued as a matter of law. Despite the heavy burden on the owner to establish that equitable estoppel should apply, he had presented enough facts to create genuine issues of material fact and to withstand a summary judgment motion.

DEP Upheld in Denying Wetlands Permit Hearing
Case: In Re Castle Rock Estates, Appellate Division, A-5564-04T1, Decided July 19, 2006
The Department of Environmental Protection properly denied the request by a contract purchaser of land for an adjudicatory hearing to contest the DEP’s determination that a freshwater wetlands permit cannot be issued in the Highlands Preservation Area, which is regulated by the Highlands Water Protection and Planning Act. The landowner argued on appeal that its due process rights would be violated if the matter was not remanded to the Law Division, where it had filed an action to challenge the Act’s constitutionality and validity. However, any request for review of a final agency decision must be brought in the Appellate Division. Further, there was no issue of disputed fact for the Office of Administrative Law to adjudicate because the land was within the Highlands Preservation Area and thus required Highlands Preservation Area approval for major development.

Planning Board Erred in Not Carrying Application
Case: Breeders Walk, L.L.C. v. Jackson Township Planning Board, Appellate Division, A-4924-04T3, Decided July 13, 2006
For substantially the same reasons expressed by the Law Division, an appeals court affirmed a Law Division order reversing the Planning Board’s decision that the landowner had withdrawn its preliminary and final major subdivision approvals. A hearing on the landowner’s application to extend the approvals originally was slated for May 14, 2002, but ultimately was carried to March 25, 2003. The landowner’s attorney informed the Planning Board’s attorney on March 20 that he could not appear on March 25, and his associate showed up on March 25 instead. In view of his inability to address the substantive issues, the associate told the Planning Board that the landowner would withdraw the application. The parties disputed whether the associate had withdrawn only the extension application or had consented to withdraw the approvals. The Planning Board engaged in arbitrary and capricious action by requiring the associate to proceed with the application, instead of reasonably carrying it to allow the landowner’s attorney to appear and properly present it on the merits, the appeals court declared. 

Landowners Can’t Expand Parking Lot
Case: Gagnon v. Mayor and Council of the Borough of Point Pleasant Beach,Appellate Division, A-4626-04T5, Decided July 12, 2006
The Law Division’s final judgment upholding the Zoning Board of Adjustment’s decision as to the landowners’ use of their property as a commercial parking lot was affirmed in part and reversed in part by the Appellate Division. The property was situated in a residential zone where parking was not a permitted use. Although the Appellate Division agreed with the Law Division’s decision to uphold the Zoning Board’s determination that there was a valid pre-existing, nonconforming use of the landowners’ property as a commercial parking lot for 25 vehicles, the panel overruled the lower court decision to uphold the Zoning Board’s grant of a use variance for the landowners to expand the nonconforming use to allow parking for 47 vehicles. The Zoning Board erred by concluding that aesthetic improvement was a special reason that justified the grant of the variance, and the limited additional parking under the expansion did not constitute a special reason, in the Court’s opinion. Further, the landowners’ application failed to satisfy the negative criteria for granting a use variance.

Court Issues Split Decision on COAH Obligations
Case: In Re Petition of Howell Township for Substantive Certification, Appellate Division, A-1445-04T5, Decided June 28, 2006
Affirmed in part. Reversed in part. And remanded. That's how an appeals court split its ruling on a final decision by the Council on Affordable Housing that granted the Township’s application for second cycle substantive certification of its affordable housing plan. The landowner had objected to the plan, and the matter had reached mediation before COAH approved the application. The Appellate Division rejected the landowner’s arguments (1) that COAH erred by denying its request for an evidentiary hearing on its claim that the Township had negotiated in bad faith; (2) that COAH’s premediation report tainted the process and was flawed; (3) that COAH wrongfully granted credit for group homes; and (4) that COAH improperly granted credit for the Township’s regional contribution agreements with other municipalities. However, COAH erred by waiving its rule that limits the number of credits for age-restricted units. The Township could amend its plan to address the shortfall of 38 units resulting from the appeals court decision.

Shared Driveway Dispute Has Mixed Outcome
Case: Lentini v. Alaimo, Chancery Division, Bergen County, BER-C-134-06, Decided June 23, 2006
The Chancery Division granted in part and denied in part a motion by the defendant/third-party corporation and the defendant majority shareholder/stockholder that sought to require the plaintiff applicant: (1) to exhaust his administrative remedies before the Zoning Board of Adjustment and (2) to remove signs and obstructions on his property. The plaintiff and the corporation owned restaurants on adjacent property, and they disputed whether a shared driveway provided one-way or two-way access. The plaintiff applied in February 2006 to the Board of Adjustment for a site plan amendment to permit additional signs, a fence around his front lawn, and an automatic gate to control driveway traffic. Before the Board could act, the applicant installed signs and obstructions that restricted entry to the corporation’s restaurant from the driveway. In April 2006, the plaintiff filed a verified complaint to enjoin further Board hearings on the site plan amendment and to obtain a declaration of his legal rights to use his property, and the plaintiff and the Board later entered into a consent order that stayed the Board’s proceedings until the parties’ property rights were determined. As for the exhaustion of remedies, the complaint had to be dismissed so that the plaintiff could complete his application before the Board. As to the removal of signs and obstructions, the Chancery Division declined to grant relief because the request involved the dispute about the driveway and implicated the Board’s authority.

Convenience Store/Gas Station Wins Approval
Case: E-Z Auto Service Inc. v. Mayor and Township Committee for the Township of Plumsted, Appellate Division, A-4853-03T5, Decided June 19, 2006
Three approvals for the construction of a convenience store/gas station on two adjacent lots were upheld by the Law Division and affirmed by the appeals court. The plaintiff was one of the applicant’s competitors. Addressing the rezoning of one lot from residential to commercial by the Township government, the Appellate Division deemed it consistent with the Township’s master plan. In addition, the Court found the Township Planner’s testimony regarding the intent of the land use element of the master plan to be permissible. The panel also declared that the rezoning was supported by a valid municipal purpose, and that the notice of the rezoning complied with N.J.S.A. 40:55D-62.1. As for the site plan approval granted by the Township Land Use Board, the judges saw no indication that the Township Board had improperly rejected uncontroverted testimony or that the competitor’s position had been accepted by the applicant’s experts or the Township Board’s professionals. Finally, the Court considered the site plan approval granted by the County Planning board– which was required because the proposed development fell along two county roads– and concluded that the County Board properly adhered to its usual procedures for the review and approval of site plans.

DEP Can’t Rescind Site Approval Letter
Case: In Re Island Bay, LLC,  Appellate Division, A-3163-05T3, Decided June 21, 2006
The DEP’s rescission of its approval to connect for seven proposed houses to the sewer system operated by the Cape May County Municipal Utilities Authority has been reversed. The rescission was contained in a February 2006 letter from the manager of the DEP Bureau of Coastal Regulation to counsel for the appellant owner of the site of the proposed development. Contrary to the agency’s argument in its motion to dismiss the owner’s appeal, the letter constituted a final DEP decision. Even if the letter was merely interlocutory, the right to appeal would have been granted in the interest of justice, the Court explained. The Court pronounced the DEP’s rescission “arbitrary and capricious,” because the delay between the July 2003 approval and the February 2006 rescission was significant, and also because the owner had substantially relied on the approval during the intervening period by spending around $320,000 to design the houses, in order to obtain the necessary municipal approvals to proceed with construction, and to perform site preparation work.

Applicant Wins Dispute Over Building Permit
KLD Properties LLC v. Abballe, Appellate Division, A-4575-04T2, Decided June 23, 2006
It was wrong to dismiss the applicant’s action challenging the Borough construction official’s refusal to issue building permits, according to the Appellate Division. The Zoning Board had granted use and bulk variances to the applicant, which also had to obtain site plan approval from the Bergen County Planning and Economic Development Board. The Borough’s zoning ordinance provides that variances expire one year after their publication unless construction has begun. The County Board reviewed the application for almost two years before granting approval. Meanwhile, the Zoning Board had granted extensions of the variances, but the Borough and the official later claimed that the ordinance did not authorize the extensions. Contrary to the applicant’s argument on appeal, the Zoning Board lacked the inherent power, under the MLUL, to grant extensions for good cause. However, the Zoning Board’s extensions were not void as a matter of law because they were ultra vires in the secondary sense and not in the primary sense, and the Borough– which knew about the extensions when they were granted– was estopped from arguing that they were ultra vires in the primary sense.

Conflict of Interest Charge Sparks Reversal
Case: Kostesic v. Town of Guttenberg Joint Planning and Zoning Board, Appellate Division, A-5936-04T1, Decided June 23, 2006
Law Division orders from Feb. 8, 2005 and May 3, 2005 were reversed and remanded in an action that challenged the Joint Planning and Zoning Board’s approval of the developer’s application for bulk and use variances. The first order dismissed the objector’s claim that two Board members had a conflict of interest because they had been seen “celebrating” the Board’s approval with the developer. It’s possible the apparent “celebration” was just a coincidental meeting, and the members’ acceptance of refreshments for nearly 90 minutes may have been innocent, the Court acknowledged. Even so, there was enough question of fact to justify a plenary hearing. The second order, upholding the Board’s approval, had to be reversed because the plenary hearing had to be held before the merits of the Board’s approval could be decided.

Board Wrongfully Denied Site Plan Approval
Case: Leigh Realty Co. v. Jackson Township Planning Board, Appellate Division, A-1643-05T5, Decided June 19, 2006
The Planning Board erred in denying a realtor’s application for major site plan approval, according to both the trial court and the Appellate Division. In affirming the Law Division’s reversal of the Board’s denial, the panel cited the same reasons put forth in the lower court’s “cogent oral opinion.” Although the Township engineer regarded the company’s application to be complete, the Planning Board rejected it because the realtor wouldn’t submit the new storm-water management plan requested by the Planning Board. The Law Division correctly concluded that N.J.S.A. 40:55D–49(a) does not empower the Planning Board to ask for more information that it could have and should have obtained when it granted preliminary approval, and that drainage issues could have and should have been taken up in 1997 when the Planning Board granted the realtor’s request to extend its preliminary approval.

Recused Board Member’s Action Taints Approval
Case: Cappelluti v. City of Union City Planning Board, Appellate Division, A-5876-04T1, Decided June 6, 2006 
Because of questionable conduct by a Planning Board member, the Law Division’s dismissal of a homeowner’s complaint challenging the Board’s resolution that granted subdivision and site plan approval to the applicant has been reversed and remanded by the Appellate Division. The applicant wanted to build two 3-family homes on land next to the homeowner’s property, which contained a single-family home. Acting on a request by the homeowners’ attorney, a Board member had recused himself without contesting the issue. Nor did the record explain what personal interest he had in the matter. After seven members of the Board voted in favor of the application, the recused member also voted “yes.” In their appeal, the neighboring homeowners correctly argued that the recused member’s behavior tainted the Planning Board’s approval and required that it be vacated in its entirety. Since a new hearing was necessary, the panel offered guidance in light of the homeowners’ argument that the resolution was inadequate.

Court Resolves 20-year-old COAH Dispute
Case: Catanzareti v. Borough of High Bridge, Appellate Division, A-2093-04T2 and A-2096-04T2, Decided June 5, 2006
In a case that goes back almost 20 years, the Appellate Division affirmed a lower court order that granted preliminary subdivision and site plan approval to the landowner. Under a 1988 settlement of Mount Laurel litigation, COAH had approved the Borough’s fair share housing plan on condition that the landowner be allowed to develop his site with a mix of market-rate and affordable housing. Almost 20 years later, however, the affordable housing had not been built. The Law Division correctly concluded that the Planning Board had denied the application for arbitrary and capricious reasons. The Planning Board was also found to have acted in an arbitrary and capricious manner regarding its obligations under the settlement by denying the application instead of approving it with conditions. In view of the “tortured history” of the litigation involving the landowners’ site, the Law Division rightly approved the landowners’ applications with conditions. This decision is a companion to In Re Borough of High Bridge Grant of Substantial Certification.

Borough Wins 2nd-Round COAH Certification
Case: In Re Borough of High Bridge Grant of Substantive Certification, Appellate Division, A-913-04T2, Decided June 5, 2006
COAH’s final decision granting the Borough’s petition for second-round substantive certification of its affordable housing plan was affirmed. In 1988, the two parties entered into a COAH-mediated agreement to settle a Mount Laurel builder’s remedy action. The deal called for the landowner’s site to be part of the Borough’s fair share plan. In the Borough’s 1997 initial petition for second-round substantive certification, the plan contained the landowner’s site. Later, however, the Borough tried to exclude the same site from its plan, and its 2001 re-petition stated that the landowner’s site was included under protest. COAH’s decision approved the 2001 plan, including the landowner’s site. Even if the Borough could satisfy its fair share obligation in some other way, there was no abuse of discretion or other error in COAH’s decision to enforce the parties’ settlement by requiring the plan to continue to include the landowner’s site. This decision is a companion to Catanzareti v. Borough of High Bridge.

Nothing Improper in Board Member’s Conduct
Case: Murtagh v. Borough of Park Ridge, Appellate Division, A-2048-04T2, Decided June 7, 2006
Repeating substantially the reasons expressed by the trial court, the Appellate Division affirmed the dismissal of a landowner’s complaint. The action challenged the Planning Board’s denial of the applicant’s request for subdivision approval and for variances from the zoning ordinance’s bulk requirements. A Planning Board member owned property next to the landowner’s property. The member did not take part in the Board’s consideration of the application, but he did voice his objection to the application during the public portion of the meeting. The Court rejected the landowner’s position that the member could not appear before the Planning Board, even though the proceedings involved his interests, and that his objections to the landowner’s application had to be presented by an intermediary. The panel saw nothing improper in the member’s conduct.

Mount Laurel Obligations No Longer Apply
Case: V&L Associates v. Township of Montville, Appellate Division, A-2121-04T5, Decided June 2, 2006
A Law Division decision after a bench trial that voided the Township’s ordinance-which rezoned the plaintiff’s property from an affordable housing district to an office building district– has been reversed. The 13-acre property, which had been zoned for commercial uses when V&L purchased it, had been rezoned to allow affordable housing under a judgment that was rendered in a Mount Laurel action. The Township subsequently obtained substantive certification from the Council on Affordable Housing that had met its fair share obligation. The Township then adopted the ordinance, which V&L decided to challenge. The Law Division incorrectly concluded that the Mount Laurel judgment still was binding on the parties. COAH had exercised control over the Township’s affordable housing obligation, and the Fair Housing Act authorizes a municipality to amend its zoning ordinance once its affordable housing obligation has been satisfied.

Homeowner Loses Contest with Diocese 
Case: Gewertz v. Diocese of Camden, Appellate Division, A-3980-03T5, Decided May 25, 2006
The Appellate Division affirmed a summary judgment dismissing a homeowner’s complaint for substantially the same reasons expressed by the trial court. The complaint challenged the adoption of revisions to the Township’s master plan and an amendment to the Township’s unified development ordinance. The diocese wanted to build a parochial high school on property next to the plaintiff’s home. Schools were not permitted as conditional uses in the low-density residential zone where the property was located, but they were allowed as conditional uses in institutionalized zones. The revisions to the master plan extended an existing institutionalized zone to embrace the property, and the amendment to the ordinance rezoned the property as institutional. The property owner tried to void the Planning Board’s adoption of the revision to the master plan, to require the Planning Board to reconsider its decision, and to disqualify the Township planner and other professionals to the Planning Board based on conflicts of interests. Evidence presented by the homeowner did not create a genuine issue of material fact, in the opinion of the appeals court.

Time Ran Out on Application to Subdivide Parcel
Case: Scarfi v. Westwood Planning Board, Appellate Division, A-1397-05T3, Decided May 24, 2006 
Offering substantially the same reasons given by the Law Division, an appeals court upheld a declaration that the applicant’s right to subdivide a parcel of property had expired. The lower court reversed the Planning Board’s denial of an application for a minor subdivision, and it approved that application. Instead of acting on this approval, however, the applicant submitted a second application to subdivide the parcel in a different way. After the Planning Board, nixed the second application, the lower court dismissed the applicant’s challenge of that denial. Scarfi then quit pursuing the second application and, in June 2005 he filed a proposed form of subdivision deed with the Planning Board that was based on the approval of his first application. The Planning Board did not sign and return the deed. In view of the applicant’s failure to perfect the approval within the 190-day time period stated in N.J.S.A. 40:55D-47d, the Law Division correctly turned down his motion to force the Planning Board to issue the deed.

Two Towns Stripped of Zoning Power
Case: Tomu Development Co., Inc., v. Borough of Carlstadt, Law Division, Bergen County, BER-L-5894-03 and BER-L-5895-03, Decided May 19, 2006
The boroughs of Carlstadt and East Rutherford have been stripped of their zoning power because the municipal governments failed to comply with their affordable housing obligations. More than six months had elapsed since the Law Division declared that the local governments had neglected their constitutional obligations under the Mount Laurel doctrine and their statutory obligations under the Fair Housing Act. Although the Law Division had given the boroughs one last chance to legislate frameworks to fulfill their obligations, they fell short of doing so. Accordingly, the Law Division appointed a monitor to oversee the land development activities in the boroughs for the foreseeable future. Moreover, the court suspended the boroughs’ zoning, land use and development ordinances and rendered them ineffectual relating to any and all future land use, construction or development in the boroughs. The court also continued the terms and conditions of its May, 13, 2005 order imposing scarce-resource restraints, and required the boroughs’ elected officials to certify to the monitor by Dec. 31, 2006 that they read portions of “Suburbs Under Siege.” Finally, the judge determined that the boroughs were not entitled to a judgment of repose.

Court Orders Against Planning Board Reversed
Case: St. Joseph’s Korean Catholic Church v. Zoning Board of Adjustment of the Borough of Rockleigh, Appellate Division, A-6860-03T2, Decided May 16, 2006
The Law Division orders that determined that the Planning Board acted arbitrarily and capriciously in denying a church’s application for variances, and that awarded attorney’s fees to the church under the federal Land Use and Institutionalized Persons Act have been reversed. The church wanted to build a house of worship on property comprising all of the Borough’s business transitional zone, and it had to apply for a special-reasons use variance and other variances. Addressing the Board’s decision, the appeals panel ruled that the trial court essentially and mistakenly replaced the Board’s judgment with its own. As to the attorney’s fees under the RLUIPA, the church failed to meet its burden of proving that any of the Borough’s land use ordinances or the Board’s denial of the church’s application placed a substantial burden on its exercise of religion.

Court Dismisses Legal Challenge to Ordinance
Case: Callery v. Township of Weehawken, Appellate Division, A-5902-04T3, Decided May 15, 2006 
Because the plaintiff landowners failed to exhaust their administrative remedies before going to court, the Appellate Division dismissed their constitutional challenge to a local zoning ordinance. The landowners sought (1) a declaration that the Township’s zoning ordinance unconstitutionally denied them any and all reasonable use of their property and constituted a taking of their property without just compensation; and (2) rezoning of the property or compensation at fair market value for the property. The landowners’ property was subject to significant restrictions because it was in the Township’s Outdoor Recreation Zone and its Steep Slope District. However, neither the landowners nor any would-be purchaser of their property had submitted a development plan to the Zoning Board or had sought a variance. The trial court was correct in concluding that the courts could not consider their constitutional challenge to the ordinance until the landowners used up administrative remedies.
Earlier 2006 rulings     2005 rulings