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2005 Rulings
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Courts Deny Variance for Drug Treatment Facility
Case: Jewish Family Service, Inc. v. Zoning Board of Adjustment of the Borough of Bergenfield, Appellate Division, A-4450-04T5, Decided Jan. 13, 2005
A nonprofit organization’s application for a use variance to operate a long-term drug treatment center has been rejected. Jewish Family Service, Inc. wanted to open the facility on its premises, but the Zoning Board rejected the organization’s argument that the proposed use qualified as an inherently beneficial use, and the trial court upheld the decision. In affirming this ruling, the Appellate Division observed that there was a dearth of evidence about the need for the proposed facility in the area and the underlying thrust of the organization’s application was essentially economic. The panel also concluded that Jewish Family Service did not present special reasons to warrant the grant of the variance inasmuch as it had declined to proceed on that basis before the Zoning Board.

Board Members Reinstated on Appeal
Case: Duncan v. Paterson City Council,
Appellate Division, A-645-04T3, Decided Feb. 28, 2005
A lower court order reinstating three plaintiff members of the Paterson Zoning Board of Adjustment to their positions has been affirmed. On April 21, 2004, the City Council had adopted resolutions removing the plaintiffs from their positions. The plaintiffs challenged the Council’s action on the grounds that the resolutions had not been adopted by two-thirds of the City Council, and the resolutions were affirmed by more than two-thirds of the City Council on April 27, 2004. But the trial court found that the April 21 vote was invalid and was not corrected by the April 27 vote. The trial court properly read N.J.S.A. 40:55D-69 to conclude that two-thirds vote was required, and there was no need to address whether sufficient cause existed to support the plaintiffs’ removal Not only that, but the April 27 resolution was flawed, according to the Court.

Proposed Car Wash Ruled ‘Unacceptable Risk’
Case: Bell v. Zoning Board of Adjustment,
Appellate Division, A-1463-03T2, Decided March 4, 2005
Both the Law Division and the Appellate Division turned down a proposed car wash in a busy commercial area at an intersection with Route 17 in Ramsey. The zoning ordinance required an average lot depth of 150 feet, which was intended to ensure that vehicles waiting in line would not spill out onto the adjacent roadway. The Law Division was correct in its finding that the plaintiffs had failed to satisfy both the positive and the negative criteria, according to an appeals court. The record supported the conclusions that the site was particularly unsuitable for a car wash, that the plaintiffs’ were overly optimistic in their assumptions about the capacity of the car wash, and that even one car extending into the roadway would pose an unacceptable risk.

Court Rules for Planning Board in Site Plan Rejection
Case: Rukh Enterprises, Inc. v. Planning Board of the Township of Edison,
 Appellate Division, A-4802-03T1, Decided Feb. 23, 2005
The Court reversed a Law Division order for the relevant ordinance. Also, the record supported the Law Division’s finding that a remand to the Planning Board for further proceedings would be futile.

Board Members Reinstated on Appeal
Case: Duncan v. Paterson City Council,
Appellate Division, A-645-04T3, Decided Feb. 28, 2005
A lower court order reinstating three plaintiff members of the Paterson Zoning Board of Adjustment to their positions has been affirmed. On April 21, 2004, the City Council had adopted resolutions removing the plaintiffs from their positions. The plaintiffs challenged the Council’s action on the grounds that the resolutions had not been adopted by two-thirds of the City Council, and the resolutions were affirmed by more than two-thirds of the City Council on April 27, 2004. But the trial court found that the April 21 vote was invalid and was not corrected by the April 27 vote. The trial court properly read N.J.S.A. 40:55D-69 to conclude that two-thirds vote was required, and there was no need to address whether sufficient cause existed to support the plaintiffs’ removal Not only that, but the April 27 resolution was flawed, according to the Court.

Proposed Car Wash Ruled ‘Unacceptable Risk’
Case: Bell v. Zoning Board of Adjustment,
Appellate Division, A-1463-03T2, Decided March 4, 2005
Both the Law Division and the Appellate Division turned down a proposed car wash in a busy commercial area at an intersection with Route 17 in Ramsey. The zoning ordinance required an average lot depth of 150 feet, which was intended to ensure that vehicles waiting in line would not spill out onto the adjacent roadway. The Law Division was correct in its finding that the plaintiffs had failed to satisfy both the positive and the negative criteria, according to an appeals court. The record supported the conclusions that the site was particularly unsuitable for a car wash, that the plaintiffs’ were overly optimistic in their assumptions about the capacity of the car wash, and that even one car extending into the roadway would pose an unacceptable risk.

Denial of Variances Not a ‘Regulatory Taking’
Case: MDM Contractors, Inc. v. Board of Adjustment of the Township of Pequannock,
Appellate Division, A-3093-03T1, Decided March 1, 2005
The Court affirmed an order dismissing the plaintiffs’ action and upholding the Board’s decision denying the plaintiffs’ variance application and determining that the denial was not a regulatory taking. The Board properly affirmed the Board’s decision, the Court said, because it was not arbitrary, capricious or unreasonable for the defendant to conclude that granting the variance in this case would not improve the zoning so as to benefit the community, as opposed to benefiting only the landowner. Moreover, the denial was not a taking because the property in question was not zoned into idleness but became idle through the sale of the adjacent property, which was an action taken by the plaintiff property owner.

Redevelopment Plan Withstands Court Challenge
Case: Brnicevic v. Borough of Bound Brook,
Appellate Division, A-3334-03T3, Decided March 8, 2005
After extensive river flooding in 1999, the Borough declared some of its southernmost area in need of redevelopment, and it adopted a redevelopment plan that contemplated acquiring numerous business and residential properties through eminent domain. When the plaintiff challenged this plan, the trial court concluded that: (1) although a better plan might be possible, the borough’s plan was not arbitrary and capricious; (2) that an initial development plan need not discuss in full detail every planning issue specified in the Redevelopment Law, N.J.S.A. 40A: 12A-7a(1) through (5). Furthermore, there was no merit to the plaintiffs’ claim that the borough wrongfully withheld information from the trial court about its settlement discussions with the Justice Department. The Appellate Division upheld this lower court ruling.

Board’s Denial of Variances Reinstated
Case: Brinker v. Brigantine City Planning Board,
Appellate Division, A-3498-03T2, Decided March 7, 2005
An appeals court overturned a lower court order reversing the Planning Board’s denial of variances from lot size and frontage pertaining to the proposed conditional use and granting the variances, and reinstated the Board’s decision. The plaintiff sought to replace the existing duplex with a larger, more attractive, and energy-efficient duplex, but his property could not accommodate the four conforming parking spaces without using the side-yard setbacks and without building a driveway that extended across the entire front of the property. As for the positive criteria, the plaintiff did not meet the burden of solving the parking problem. And as to the negative criteria, the Board properly concluded that the plaintiff’s project was irreconcilable with the municipality’s legislative determination that lot sizes and frontage requirements should be imposed on all duplexes.

Rooftop Tennis Court Nixed as Accessory Use
Case: Wilson v. City of Jersey City,
Appellate Division, A-6642-03T1, Decided March 24, 2005
Recreation areas, including the plaintiff’s rooftop tennis court, are not permissible accessory uses in the one– and two-family housing zone where the plaintiff’s building was located. So said the Appellate Division in affirming a Law Division judgment that upheld a Zoning Board resolution. Contrary to the plaintiff’s argument on appeal, the lower court correctly recognized that the Board’s decision was presumptively valid and subject to reversal only if it was arbitrary, capricious or unreasonable. Further, the factual record supported the Board’s determination that a lighted rooftop tennis court was not permissible as an accessory use where the Board found (1) that it was unable to reconcile the adverse effects that the tennis court would have on adjoining premises and (2) that vast majority of lots in the zone lacked sufficient area to house a tennis court.

Court Denies Accessory Use for Cell Tower
Case: Moran v. Weikel,
 Appellate Division, A-2516-03T5, Decided April 11, 2005
The Law Division was correct in upholding the Board of Adjustment’s denial of a zoning application and tossing out the plaintiff applicant’s motion for reconsideration and for entry of default judgments against the defendant municipality and the defendant zoning official, the Court declared. The plaintiff wanted to put up a tower for personal use to communicate with his construction company in Pennsylvania and for use by wireless carriers if leases became available. The evidence supported the findings of the Board and the Law Division that the plaintiff did not have a proprietary interest in the land and that, even if he did, the use could not be deemed an accessory use, there was no reasonable reliance or valid claim of estoppel or laches based on the zoning officer’s erroneous issuance of a building permit, and the Law Division did not abuse its discretion by denying the plaintiff’s motion for reconsideration or for entry of default judgment.

More 2005 Rulings