Land Use Decisions

A sampling of current rulings from New Jersey courts on land use issues. Included are published and unpublished cases.

May 2008
 

• 2007- 2006 Land Use Decisions (unpublished)
  (Some cases may be on appeal or already decided by a higher court; further, some decisions may be "published" cases.) 

  • 
    Prepared by Frank Reysen, Jr.
    NJPO Contributing Editor

  Intention of this report is not to offer legal opinion. 

  Unmerged Lot Can Be Sold
  Case: Fell v. Zoning Board of Adjustment of the Borough of Cape May Point, Appellate Division, A-3373-05T2,  Jan. 9, 2007.
  Since one of the five contiguous lots owned by a property owner had not merged with the other four lots, that lot could be sold without subdivision approval and without consideration of bulk variances for the two structures on the other four lots. This decision of the Zoning Board of Adjustment was upheld in a Law Division order, and affirmed by the Appellate Division substantially for the reasons expressed by the trial judge. Contrary to the plaintiffs’ claim on appeal, the Law Division did not incorrectly uphold the Board of Adjustment decision. Nor did it misapply the N.J. Supreme Court decision enunciated in Jock v. Zoning Board of Adjustment of Wall.

  Site Plan Needed to Install Electric Gate
  Case: Sprout Development Co., L.L.C. v. Borough of Paramus, Appellate Division, A-2180-05T1, Decided Jan. 12, 2007.
  An appeals court reversed a Chancery Division order that denied Sprout’s motion to cancel permits issued by the municipality to Holobeam, its neighboring shopping center. In 1992, the parties, Sprout and Holobeam Inc., entered into an agreement for a cross-access driveway between their adjoining commercial properties on Route 17 for commercial and pedestrian use. The driveway was built and used for more than 10 years, allowing shoppers to access both shopping centers without having to re-enter Route 17. In 2004, the neighbor, Holobeam, served written notice to terminate the agreement, and it secured building permits to install an electric gate that would bar use of the driveway for commercial and pedestrian traffic, while permitting remote access for emergency vehicles. The Chancery Division judge granted summary judgment to Holobeam, declaring that the termination clause was valid and denying Sprout’s motion to invalidate the permits. In reversing the lower court, the Appellate Division agreed that Sprout did not have to exhaust its administrative remedies before filing its complaint, since the matter concerned a question of fact, not law. Further, the Court said, the clear and unambiguous municipal ordinance provides that site plan approval is needed to make any alterations on a site, except for minor alterations for maintenance, repairs, or correction of drainage problems. The installation of the electric gate did not fall within any of the three exemptions. Even if it did, the Court observed, site plan approval still was required because the proposed alteration was not minor.

  Court Dismisses Nonprofit’s Rezoning Complaint
  Case: Monmouth Housing Alliance v. Zoning Board of Adjustment, of the Township of Marlboro, Appellate Division, A-5663-04T1,  Feb. 14, 2007.
  The Law Division correctly dismissed complaints by a nonprofit organization and an individual plaintiff that challenged the Township’s rezoning of about 1000 acres for low-density development and the Zoning Board of Adjustment’s denial of a variance to the corporation. The nonprofit group wanted a variance to build a 37-unit multiple dwelling to offer affordable housing, primarily for the mentally ill, on land that had been rezoned for one house per 10 acres. The plaintiffs withdrew their claim under the MLUL before trial. As for the remaining claims, the trial court properly concluded that neither the Federal Fair Housing Act nor the New Jersey Law Against Discrimination required a finding that the Township or the Board had committed intentional discrimination or had failed to make reasonable accommodations to permit construction of the proposed multiple dwelling.

  Board Ignored Evidence in Denying Subdivision
  Case: Martelli Development Inc. v. Planning Board of Middletown, Appellate Division, Decided Feb. 5, 2007.
  The Law Division was correct in reversing the Planning Board’s denial of a subdivision application because the Board completely disregarded the unrefuted evidence supporting the benefits that would be conferred by the application and the purposes of the MLUL that would be advanced. For example, the Court mentioned that this development, consisting of four estate-type homes on a cul-de-sac, would provide an appropriate use for the land in the residential district; provide for adequate light, air, and open space; promote the establishment of appropriate population density, in accordance with the Township’s master plan; maximize traffic safety; and eliminate the unsightly and unsuitable nonconforming commercial uses then in existence.

  Denial of Variance Based on Invalid Ordinance
  Case: WaWa Inc. v. City of Vineland Zoning Board of Adjustment, et al., Appellate Division, A-2723-05T2;  Feb. 2, 2007.
  WaWa sought approval to put up a convenience store and gasoline service station on a portion of property it had contracted to purchase within a residential zone. The Zoning Board denied the use-variance application, but the Law Division judge reversed and remanded for further proceedings, and the Zoning Board appealed. The judge also invalidated the municipal ordinance designating the property as a residential zone as inconsistent with the provisions of the MLUL. This ruling was not appealed. While the appeal of the use-variance was pending, the Board reconsidered and granted WaWa’s site-plan application. Since the Board’s decision against the use-variance was expressly predicated on a now-invalid ordinance, the question of whether the Board correctly interpreted that ordinance when it denied WaWa’s application was rendered moot.

  Court Won’t Undo Board’s Denial of Variances Case: Iannacone v. Planning Board of Woodiridge, Law Division, Bergen County, BER-L-7547-06, Decided Feb. 14, 2007.
  The applicant sought variances to reconfigure his two improved lots into three lots in order to build a new dwelling on the newborn parcel. After the Board defeated his proposal and determined he was not entitled to three minor dimensional variances, he asked the court to undo the Board’s denial of his application. Even though the court found the subdivision application was “eminently approvable,” and the three related variances seemed innocuous, the Planning Board’s 3-2 decision against the application was not so legally or factually compromised as to undermine confidence in the Board’s determination. Therefore, the judge did not find that the Board strayed sufficiently from the appropriate framework of the MLUL and declined to disturb its decision.

  Builders Lose Appeal for Attorneys’ Fees
  Case: N.J. Builders Association v. N.J. Council on Affordable Housing, Appellate Division, A-4531-04T5,  Jan. 24, 2007
  Appealing from the denial of its application for attorneys’ fees in accordance with N.J.S.A. 47:1A-6, a provision of the Open Public Records Act (OPRA), NJBA claimed it was entitled to fees because COAH did not produce the information it demanded within seven business days. The Court decided that the builders were not entitled to these fees for this reason: Because NJBA’s OPRA request did not specifically identify the documents it sought, as required by the MLUL, OPRA’s seven-day deadline did not apply. Further, NJBA’s request required COAH to identify records, survey COAH employees, gather responsive information, and produce new documents. Since OPRA does not require an agency to perform such tasks and since NJBA needed more than 10 business days to review the materials COAH produced, the Court held that COAH established that its conduct was authorized by the MLUL, which permits an agency facing a request that will substantially disrupt its operations to offer a reasonable solution that accommodates the competing interests.

  Regional Contribution Agreement Affirmed
  Case: In re Approval by the New Jersey Council on Affordable Housing of a Regional Contribution Agreement Between Red Bank (Monmouth County) and Manalapan (Monmouth County), Appellate Division, A-3326-04T3, Decided Feb. 28, 2007.
  The Court affirmed a final decision by the Council on Affordable Housing from Feb. 9, 2005 that approved a regional contribution agreement between the Township of Manalapan and the Borough of Red Bank In March 2000, the Township of Middletown submitted a petition to COAH for substantive certification of its affordable housing plan, which included a regional contribution agreement with Red Bank. However, COAH did not act on Middletown’s petition or its agreement with Red Bank. In January 2003, Red Bank canceled the agreement with Middletown. In December 2003, Manalapan submitted an amended petition to COAH for substantive certification of a plan that contained a regional contribution agreement with Red Bank In its appeal, Middletown focused on: COAH’s delay in considering Middletown’s petition and its agreement with Red Bank, and Red Bank’s cancellation of that agreement. Those arguments, however, were not grounds for invalidating COAH’s approval of the agreement between Manalapan and Red Bank.

  Restaurant’s Color Suitable for Shopping Center
  Case: Yanucil v. Voorhees Township, Appellate Division, A-1159-05T1, Decided Feb. 27, 2007.
  The Appellate Division agreed with the Law Division’s final judgment that determined that the applicant had fully complied with the condition attached to the Planning Board’s approval of his site plan application. The Township’s representatives had expressed concern that the color of the applicant’s proposed restaurant was not compatible with the color of the existing shopping center where the restaurant was being built. The Planning Board’s condition stated that the colors of the building roof line and canopies shall be as depicted on the color architectural evaluations that supported the application. The Township objected to the color of the completed restaurant, revoked the certificate of occupancy, and ordered that the applicant cease operations. No ordinance conferred authority on the Planning Board to condition site plan approval on satisfaction of aesthetic standards. Even assuming that the Planning Board’s condition was valid, substantial evidence supported the lower court’s conclusion that the color of the restaurant was reasonably comparable to the color of the shopping center.
  
  Owner Denied Permission to Fill Wetlands
  Case: Doyal v. N.J. D.E.P , Appellate Division, A-4839-04T1, Decided Jan. 24, 2007.
  The Freshwater Wetlands Protection Act does not authorize the issuance of a general permit for filling or other regulated activity in a freshwater wetland that is part of a surface water tributary system, regardless of whether the system is non-tidal or tidal. This decision came in a case where Samuel Doyal planned to build a house on a lot that contained extensive freshwater wetlands that would need to be drained. The Court held that the DEP correctly rejected the landowner’s application to fill the wetlands that drain into a stormwater discharge system, which drains into a tidal stream that empties into the Atlantic Ocean.

  Wal-Mart Shopping Center Gets Green Light
  Case: Concerned Citizens of Deptford, et al. v. Deptford Township Planning Board, Appellate Division,. A-1147-05T1, Decided March 2, 2007.
  A proposed shopping center, anchored by a Wal-Mart store, withstood a challenge from objectors who claimed that the application failed to comply with the applicable sections of the MLUL as well as the applicable municipal ordinance regarding allowable trip generation. The Appellate Division affirmed the trial court’s dismissal of the plaintiffs’ action seeking to vacate the Planning Board’s final approval of a development application. Addressing the objectors’ Open Public Meetings Act argument, the trial court justifiably found the plaintiffs did not prove that the Board failed to make records available to the public, considered information from Wal-Mart’s first application, or held closed meetings about the application.

  DEP Loses Dispute Over Contaminated Land
  Case: NL Industries, Inc. v. N.J. DEP, et al., Appellate Division, -A-5804-04T2 (consolidated), Decided March 2, 2007.
  A complicated dispute involving the interplay between a municipality’s efforts to redevelop land contaminated through years of industrial use and the rights and responsibilities of the owner of that land engaged in a long-term remediation program wound up in favor of the owner. In light of its inability over a three-year period to obtain from the DEP what it considered to be the necessary assurances as to its future plans to complete the remediation, the owner filed this declaratory judgment action asking for a ruling that (1) it could not be removed as the responsible party for remediation purposes unless and until the DEP declared it to be in default and gave it an opportunity to cure any such default; and (2) any action removing it would violate the owner’s rights under the amended ACO executed by both sides. The panel affirmed the lower court’s denial of the DEP’s motion to dismiss and the grant of summary judgment to the owner against the DEP, rejecting the agency’s contention that the trial judge had no jurisdiction to hear the matter and did not give the appropriate deference to the DEP’s decision-making authority.

  Put That Fountain Back, Court Orders
  Case: Cottsworld LLC v. Rernaud, Chancery Division, Bergen County, BER-C-72-06, Decided Feb. 21, 2007.
  In a property owner’s declaratory judgment against the municipality, the municipal construction officer and the municipal historic preservation commission, the Chancery Division ruled that the owner’s removal of a large fountain from the property, which was an historic site, was improper and that the fountain had to be returned to its former location. The owner purchased the property after it had been designated an historic site and the owner later removed the fountain for safekeeping and converted the property into a 13-unit condominium . The M LUL and the local land development ordinance define an historic site as any real property, man-made strructure, natural object, or configuration that thas historic significance. The municipal ordinance that added the property to the list of historic sites specifically included all the surrounding land and improvements The fountain was a man-made structure, an improvement and a structure.

  Automatic Approval Requests Denied
  Case: Patriot Homes, L.L.C. v. Franklin Township Planning Board, Appellate Division, A-699-06T1 and A-700-06T1, Decided July 19, 2007.
  Citing substantially the same reasons given by the Law Division, an appeals court affirmed the lower court’s denial of the applicants’ requests for automatic approval of their major subdivision plans in accordance with N.J.S.A. 40:55D-10.4. In their appeal, the applicants argued that the director of the Township’s community development department had delayed their applications unnecessarily by insisting that they satisfy arbitrary ad hoc requirements. The plaintiffs also contended that the applications should have been deemed complete in accordance with N.J.S.A. 40:55D-10.3, and that the applicants were entitled to automatic approval. However, the panel found those contentions lacked merit, and the Law Division was justified in ruling that the applicants failed to establish that the Township acted unreasonably, arbitrarily or capriciously.
  
  Setback Variances Win Approval
  Case: Maresca v. Board of Adjustment of the Township of Denville, Appellate Division, A-1716-06T3, Decided July 25, 2007.
  The Court affirmed a Law Division order which upheld the grant of bulk variances by the Board of Adjustment to the applicants. Variances were needed for side-yard and front-yard setbacks for the applicants to build an addition onto their home. Previously, the appeals court had reversed and remanded for additional findings by the Board . The Board then considered the application as a new matter, even though most of the addition had been built. It determined that a hardship variance under N.J.S.A. 40:55D-70©(1) was appropriate based on the size and irregular shape of the applicant’s lot as well as the problems created by the setback restrictions. Further, the Board determined that the applicants satisfied the requirements for a variance under the MLUL, partly because the addition was aesthetically pleasing and updated. The record more than adequately supported the decisions of the Board and the Law Division, the panel concluded.

  Court Rejects Challenge to Mixed-Use Building
  Case: Kratz v. Zoning Board of Adjustment of the City of Hoboken, Appellate Division, A-4594-05T3, Decided July 25, 2007.
  The Law Division properly dismissed the objector’s challenge to the Zoning Board of Adjustment’s grant of all relief requested by the applicant. The applicant wanted preliminary and final major subdivision approval, preliminary site plan approval, and variances to build a mixed-use building with a bar and restaurant, business offices, and residences on a vacant low formerly occupied by a historic restaurant. The appeals court rejected the objector’s contentions (1) that the Zoning Board’s grant of variances under N.J.S.A. 40:55D-70(d) and –70(c) was arbitrary, capricious and unreasonable; (2) that the Zoning Board improperly granted site plan and subdivision approval because the applicant did not present the required proofs and because the Zoning Board did not make the required findings, and (3) that the Zoning Board’s hearing and its decision were affected by improper notice of the hearing, the untimely notice of the hearing, the untimely filing of a contribution and disclosure statement, and the Zoning Board’s failure to consider the recommendations of the Historic Preservation Commission.

  Zoning Ordinance Violates Prohibition on Moratoriums
  Case: Paxinopoulos v. Oradell Planning Board, Law Division, Bergen County, BER-L-9415-06, Decided Aug. 22, 2007.
  The court reversed the Planning Board’s denial of a landowner’s application to subdivide his property because the zoning ordinance involved discriminated against similarly situated property owners and because it violated the MLUL’s prohibition on moratoriums. A provision of the local ordinance barred the Planning Board from approving any subdivisions that required demolition of an existing primary structure on the property or that involved property on which a primary structure had existed within the previous five The landowner’s application sought a variance from that provision because the landowner wanted to tear down an existing single-family home on his property. The Planning Board denied the subdivision application based solely on the need for a variance. The Law Division rejected the landowner’s argument that the ordinance had to be invalidated because it neither advanced the purposes of the MLUL nor comported with the goals and objectives of the Borough’s master plan. Still, the landowner won his appeal, and the ordinance had to be invalidated because of the discrimination factor and the MLUL’s moratoriums’ prohibition.

  Bar and Restaurant Not Allowed in Business Zone Case: Yard Sale Treasures, L.L.C. v. Township of Berkely, Appellate Division, A-1433-06T3, Decided Aug. 13, 2007.
  The Law Division correctly ruled against a property owner who sought to open a bar and restaurant in the Neighborhood Business Zone. The applicant had been assured by the Township’s zoning officer that a bar/restaurant would be a permitted use on the site of an existing restaurant, and a zoning permit was issued. Relying on these factors, the applicant bought the existing restaurant and renovated it for his bar and restaurant. The Township attorney then informed the applicant that neither bar nor restaurant were permitted in the Business Zone, where the property was located, and that the Township would not issue a certificate of occupancy. After this action was filed, the Township conceded that the restaurant was a prior nonconforming use, and it permitted the owners to operate the restaurant minus the bar. Even so, the trial court properly concluded that the zoning ordinance does not allow restaurants or bars in the Zone and that Berkely was not equitably estopped from revoking the zoning permit because it had been issued in clear violation of the ordinance.
  
  Court Upholds Subdivision Approvals
  Case: Scudese v. Washington Township Planning Board, Appellate Division, A-1236-04T1, A-1595-04T1, and A-913-05T1, Decided Aug. 6, 2007.
  The Appellate Division affirmed the Law Division’s judgments in actions over subdivision approvals. The complaint .(1) challenged the Planning Board’s grant of preliminary and final subdivision approval for the developer to build 12 homes on a 71.84-acre tract; (2) challenged the validity of the Township’s ordinance governing cluster and lot=averaging subdivisions, which provided authority for the subdivision approvals, and (3) claimed an implied easement over the tract for the annual erection of a snow fence. Nothing in the subdivision approvals, including the Planning Board’s handling of water quality and environmental issues in light of putative septic-system limitations, was so patently flawed that it was arbitrary, capricious or unreasonable Further, the Court affirmed the dismissals of the challenge to the ordinance and the easement claim for substantially the same reasons given by the lower court.

  Courts OK 3-Lot Subdivision in Residential Zone
  Case: Garvin v. Planning Board of the Township of Middletown, Appellate Division, A-4793-05T1, Decided Aug. 27, 2007. The Law Division properly reversed the Planning Board’s denial of the applicant’s request for approval of a three-lot subdivision in a residential zone. The panel cited substantially the same reasons expressed by the trial judge. The applicant sought variance relief from N..J.S.A. 40:55D-35 because two of the proposed lots would not have frontage on a public right-of-way but instead would be served by a private road . She also asked for variance relief under N.J.S.A. 40:55D-70c(1) from the municipal requirement of 125 feet of frontage . The Law Division justifiably concluded that it was beyond the scope for the Planning Board to require a right-of-way improvement unless it was needed for public safety. The lower court also found that the Planning Board failed to apply N.J.S.A. 40:55D-36, which permits variances from Section 40:55D-35, to the facts, and that the Planning Board ignored that the proposed lots conformed to bulk dimension requirements and that the Board already had approved a significant number of similar subdivisions private lanes in the same zone.
  
  Board’s Denial of Minor Subdivision Overturned
  Case: Rosenfeld v. Planning Board of the City of Cape May, Appellate Division, A-3378-05T5, Decided Aug. 9, 2007.
  Giving substantially the same reasons stated by the Law Division, an appeals court affirmed a Law Division order that overturned the Planning Board’s denial of the landowner’s application for a minor subdivision with eight minor variances. The Law Division found that the Planning Board’s decision was arbitrary, capricious and unreasonable, and it granted the subdivision with variances, subject to the conditions contained in the report from the Planning Board’s engineer. The Appellate Division was not persuaded by the Planning Board’s argument that the Law Division failed to explain sufficiently how the landowner satisfied the positive and negative criteria under N.J.S.A. 40:55D-70c(1) and (2), and that the Law Division failed to give substantial deference to the Planning Board’s decision.
  
  Courts Reject Challenge to Cellular Facilities
  Case: Strevens v. Zoning Board of Adjustment of the Township of Howell, Appellate Division A-1780-06T2,  Sept. 4, 2007. A Law Division order that denied a homeowner’s challenge to the Zoning Board of Adjustment’s action on a cellular tower application was sustained by the Appellate Division. The Zoning Board approved the joint application by a first-aid squad and a wireless communications company. The application sought a use variance, bulk variances, and preliminary and final site plan approvals with waivers to build an unmanned wireless telephone facility on the first-aid squad’s property, next to the plaintiff’s property, and to remove a lattice-work antenna from the top of the first-aid squad’s building and install 12 antennas on a 150-foot monopole tower. The Court rejected the neighbor’s arguments (1) that the Zoning Board failed to apply the zoning ordinance’s requirements that the communications company show that its facility could not be collocated on an existing tower, and (2) that the evidence did not support the Zoning Board’s findings.
  
  No Conflicts of Interest Seen in Board’s Actions
  Case: Nuckel v. Borough of Little Ferry Planning Board, Appellate Division, A-5874-06T5, Decided Sept. 5, 2007.
  The Court sustained two Law Division orders in a challenge to the actions of the Combined Planning/Zoning Board.. The applicant wanted to put up a hotel, and the first court order upheld, with modification, the Board’s grant of the applicant’s requests for permission to consolidate several lots and to subdivide the consolidated parcels, for preliminary site plan approval, and for variances. The Appellate Division agreed substantially with the judge’s reasoning in this order. The second order denied the objector’s post-judgment motions for discovery and to supplement the record on his claim that there were conflicts of interest involving two professionals the Board had hired. The Law Division properly denied those motions on waiver and estoppel grounds. Further, both the relevant provisions of the Local Government Ethics Law and the case law discuss conflicts of interest involving members of decision-making boards, not the professionals who appear before them.
  
  Tenant Not Entitled to Condemnation Funds
  Case: Township of Cinnaminson v. Mall Associates, LLC, Appellate Division, A-1654-06T5, Decided Oct. 4, 2007.
  An appeals court let stand a Law Division order that allowed the landlord of condemned property to withdraw the condemnation funds of more than $10.7 million that the Township deposited into court, and that dismissed the tenant’s application seeking about $900,000 of those funds. Although a tenant may be entitled to participate in allocation proceedings based on its leasehold interest, the tenant here contracted away its right to share in the award because the lease provided that the landlord was entitled to the condemnation award attributed to the real property. The lease provided that the tenant was entitled only to the condemnation award attributed to the taking of its fixtures and equipment, leasehold improvements, relocation expenses, goodwill loss of business or other award not related to the value of the real property, but those damages are not part of a condemnation award in New Jersey.

  Medevac Operation Cleared for Takeoff
  Case: Somerset Air Service, Inc. v. Township of Bedminster, Appellate Division, A-5311-05T2, Decided June 21, 2007.
  An appeals court affirmed a Law Division order in consolidated actions that arose from the relocation of New Jersey’s NorthSTAR medevac helicopter operation to Somerset airport in Bedminster. The plaintiff owned the airport, which operates as a permitted conditional use in the Township’s rural residential zone. The court order enjoined interference with the medevac operation pending a final decision in this matter. The medevac operation was declared a permitted aeronautical activity at the Airport, and the operation’s offices are permitted as accessory uses. The Law Division also voided the determinations of the Township Zoning Officer and the Township Engineer that the medevac operation required variance approval from the Zoning Board of Adjustment. The court order also declared that jurisdiction over the corporation’s application for conditional use and site plan approval to create additional office space was vested in the Planning Board rather than the Zoning Board. The Law Division remanded the matter to the Planning Board, and joined the Zoning Board and the Planning Board as indispensable parties. The Appellate Division rejected both the procedural and substantive challenges to the Law Division’s order.

  Developer Wins Approval for Apartment Building
  Price v. 1514-1516 Manhattan Avenue LLC,Appellate Division, A-5340-05T3, Decided June 25, 2007.
  The lower court’s dismissal of an action that challenged the Planning Board’s approval of a developer’s application to build a 20-story apartment building on the Palisades in Union City was affirmed by the Appellate Division. The plaintiff, who had not attended the Planning Board’s hearing on the proposed site plan, argued on appeal that, in the absence of a specific designation by the Planning Board of the steeply sloped portion of the property as “cliff face,” within the meaning of the zoning ordinance, the steeply sloped portion could not legally be excluded from the steep slope density calculation under the ordinance. Thus, there was no competent evidence to support the approval of the application, according to the plaintiff. However, the evidence in the site plan of a precipitous slope on the property, combined with the verbal admission by all participants at the hearing that the property was at a crest of the Palisades, created a sufficient foundation for the Planning Board and the Law Division to conclude that the developer’s density calculation was derived correctly.

  Recent Gallenthin Decision Necessitates Remand
  Arborwood I, II, III Condo Assns., Inc. et al, v Borough of Lindenwold, Appellate Division, A-3977-05T2, A-3992-05T2, Decided Oct. 17 2007.
  In light of the Supreme Court’s recent decision in Gallenthin v. Borough of Paulsboro, this matter must be remanded for reconsideration. It’s up to the Law Division to determine whether and the extent, if any, to which the Gallenthin decision applies to the findings under N.J.S.A. 40A:12-5 in this case, and, in light of N.J.S.A. 40A:12A-6(b)(5) and (7) and –6©, to the determination that there was substantial evidence to support the finding of an area in need of redevelopment. Jurisdiction is retained.
  
  Board’s Action Deserved Presumption of Validity
  Case: Spooner, et ux. V. Township of Millstone, et al., Appellate Division, A-1786-06T1, Decided Oct. 16, 2007.
  A Law Division order that found the local planning board’s denial of the applicant’s request for a subdivision to be arbitrary and capricious has been reversed. The plaintiffs were entitled to relief under the ordinance’s grandfather clause. The Court directed the board to adopt a resolution granting the applicants’ minor subdivision and bulk variances. The panel agrees with the planning board that the trial judge failed to apply the proper standard of review, failed to give its action a presumption of validity, and instead substituted his own judgment for the board’s.

  Board’s Grant of Variance Ignores Statutory Criteria
  Case: Mocco v. Jersey City Planning Board of Adjustment, Appellate Division, A-0788-06T2, Decided Oct. 16, 2007.
  The members of the public and the objector questioned the mass of Brunswick’s proposed apartment building and its impact on flooding, traffic and open space. They questioned why the developer could not adapt the lot to accommodate the townhouses permitted in the zone that was situated near a large park, in a residential area and bordered by both lower and higher density residential uses. The board approved all variances, but the appeals court reversed. Neither Brunswick nor the board argued that the variance was granted because the proposed use was inherently beneficial or because limiting development to a permitted use would cause undue hardship. Accordingly, the board was required to find that the public god would be served because the Brunswick lot was particularly appropriate for the proposed apartment building. The grant of this use variance does not comport with the statutory criteria and the matter is reversed.

  Trial Court Ruling on Just Compensation Approved
  Case: City of Camden v. Formosa, Appellate Division, A-644-05T3, Decided Oct. 23, 2007.
  The landowner in this condemnation action was entitled to $235,000 as just compensation for his property, the Appellate Court declared. While affirming the Law Division’s final judgment, the appeals court rejected the landowner’s arguments (1) that the trial court erred by barring his expert from testifying at trial; (2) that the City’s complaint should have been dismissed because the City violated N.J.S.A. 20:3-6 by failing to engage in bona fide negotiations; (3) that the City violated N.J.S.A. 20:3-38 by offering compensation based on an appraisal that valued the property as of an incorrect date, and (4) that he should be reimbursed for tax payments he made after title to the property vested in the City, even though he remained in possession of the property. In view of the City’s valid exercise of its condemnation power and the lack of merit to the landowner’s opposition to the judgment, the City must be allowed to take possession of the property, and the City’s challenge to the earlier denial of its motion for possession was moot.

  Municipality Violated Telecommunications Act
  Case: Ogden Fire Co. No. 1, et al. v. Upper Chichester Townshuip, et al., Third Circuit, Filed Oct. 4, 2007.
  The plaintiffs sought approvals for a monopole/radio operations center to correct a gap in telecommunications coverage in the area, resulting in increasing daily problems with the fire company– its emergency response system , including firefighters being unable to communicate with police. The record even indicated that poor communication had communicated to the deaths of two people. Not having the finances for such a project, the fire company entered into an agreement with Sprint Spectrum, L.P. In this opinion, the circuit panel upholds the District Court’s conclusion that the municipality’s of the fire company’s requested zoning approvals and a building permit violated the Telecommunications Act of 1996. The District Court properly ordered the Township to issue the appropriate permits for the building of the radio tower and related radio equipment.

  Certification for Broad Retail Use Denied
  Case: Speedex Realty v. Franklin Township Land Use Board, Appellate Division, A-1672-06T3, Decided Oct. 18, 2007.
  An appeals court affirmed a Law Division order that upheld the determination of the Land Use Board, which denied the property owner’s application for certification of a pre-existing use. The owner wanted certification of a broad retail use that was not limited to a luncheonette, an accessory apartment, and a garage/repair area. The Law Division correctly found that the property owner failed to carry its burden of showing that the nonconforming uses on the property had not been abandoned.

  Court Denies Challenge to Condemnation Order
  Case: Fanaro v. Borough and County of South Bound Brook, Appellate Division, A-2429-05T5, A-2434-05T5, A-4019-05T5, and A-4271-05T5, Decided Nov. 14, 2007.
  In an action that challenged a redevelopment plan and a condemnation proceeding, the Court affirmed orders that granted summary judgment to the municipality, the joint Planning Board/Zoning Board of Adjustment, and the development company, and that also denied the plaintiffs’ motion to vacate the order appointing the condemnation commissioners. The Appellate Division rejected Fanaro’s arguments that the trial court was wrong in finding that the inclusion of their properties in the Industrial District Redevelopment Area was lawful. The Court also nixed the plaintiffs’ claims that the lower court had reached its decision based on an incomplete record, had disregarded the requirement that the redevelopment designation be based on substantial evidence and that the Joint Board’s determination was entitled only to a presumption of validity but not to a presumption of infallibility, and had erred by concluding that the validity of the Industrial District Redevelopment Area, as applied to their property, was barred by the statute of limitations. Further, the Court saw no merit to Fanaro’s argument that the trial court erred by denying them relief from the order that appointed condemnation commissioners.

  Board of Adjustment Had Authority in 1985 Approvals
  Case: Alfieri-Old Bridge Associates, LLC v. Board of Adjustment of the Township of Old Bridge, Appellate Division, A-1644-06T1, Decided Oct. 29, 2007. 
  A Law Division order providing that the Board of Adjustment had the lawful power in 1985 to approve the general development plan for a 140-acre tract of land and should continuer to exercise jurisdiction over future applications related to the plan of the land was affirmed as modified. Claiming that it had acted outside its statutory authority in 1985 by approving the general development plan, the Board of Adjustment had refused to consider the landowners’ applications for preliminary subdivision and site plan approval between 2003 and 2005. The appeals court agreed with the law court’s core finding b that the Board of Adjustment rightly approved the general development plan under the law as it existed in 1985 and that the approval was not vitiated by the later enactment of N.J.S.A. 40:55D-45.1, which confers exclusive jurisdiction on planning boards to evaluate general development plans. However, the Planning Board should prospectively exercise jurisdiction over site plan applications for the land, provided that it does not nullify any approvals already issued by the Board of Adjustment.

  2006 court decisions
  Earlier 2006 rulings     2005 rulings

   

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