When Can Zoning Officer Ignore Board’s Order?
Case: KLD Properties, L.L.D. v. Abballe, etc., et al.,
Law Division, 26-3-9752, Decided March 28, 2005
Can a municipal construction official/zoning officer– presumably an administrative officer under the MLUL– disregard a determination by his local board of adjustment directing him to process a building permit. In deciding this question, the judge notes that the answer seems obvious: the officer is statutorily obligated to follow the board’s directive. But that initial reaction must be tempered by the reason for the officer’s reluctance. Here, he claims that the board exceeded its subject-matter jurisdiction and had no authority to grant the relief that would result in the processing of a building permit Based on the record and the arguments stated by both sides, the judge concludes that the officer’s position stands on firmer ground than that of the plaintiff. Accordingly, the building permit approvals were void and not entitled to enforcement.

Court Nixes Appeal on Nonconforming Use
Case: Able Oil Co. v. Zoning Board of Adjustment of … Newton, et al.,
Appellate Division, 26-2-0160, Decided May 11, 2005
Ruling on the municipal zoning board’s appeal, the Court affirmed the Law Division’s adverse decision in reversing the board’s denial to the plaintiff of a certificate of a legal pre-existing nonconforming use for operation of its property as a fuel storage, sales and distribution facility.

Neighbor Entitled to Variances
Case: DeFabrizio v. Long Beach Township Land Use Board, et al.,
 Appellate Division, 16-2-0124, Decided May 6, 2005
The Law Division judge was justified in dismissing the plaintiff’s complaint seeking to overturn the grant of variances to his neighbor, whose land did not front on an improved public street, causing his need for the variances.

Court Won’t Interfere with Board’s Site-Plan OK
Case: Hi-South Plainfield, L.L.C. v. South Plainfield Planning Board.
Appellate Division, A-6872-02T1, Decided May 24, 2005
The Court upheld a trial court order dismissing the plaintiff motel owner’s complaint challenging the grant of site plan approval and bulk variances by the defendant municipal Planning Board to the defendant hotel developer. The developer wanted to construct a Hampton Inn across from the plaintiff’s Holiday Inn in the regional hospitality zone. Contrary to the plaintiff’s claims on appeal, the panel found that the trial court did base its decision on the appropriate record; the Board and the trial court correctly analyzed the developer’s application in accordance with the relevant statutory criteria; the record amply supported the Board’s conclusion that the variances would advance the goals of the MLUL, and, although the local ordinance did not include the RH zone as one where signs are permitted, the Board did not exceed its authority to interpret its own ordinance when it concluded that this was an oversight.

Billboard Variances Denied on Route 46
Case: Galaxy Outdoor Media, L.L.C. v. Zoning Board of Adjustment of ... Lodi, et al.,
Law Division,- Bergen County, 26-3-0305, Decided May 23, 2005
The trial court affirmed the defendant zoning board’s denial of the plaintiff’s application for several variances to establish and operate a two-faced, single pole billboard on commercially zoned property along Route 46. The court concluded that the board correctly analyzed the “c” and “d” variance requirements and that its denial was justified. However, the declaratory judgment aspect of this action shall continue until a trial is scheduled soon to address the plaintiff’s challenge to the validity of the underlying ordinance, which bans all billboards in the municipality.

Landowner Can’t Have Two Homes on One Lot
Case: Birmingham v. Union Beach,
Appellate Division, A-944-04T1, Decided June 9, 2005
Citing substantially the same reasons given by the Law Division, the Appellate Division affirmed the lower court’s decision upholding the defendant Planning Board’s denial of the plaintiff landowners application for a use variance. The plaintiff wanted a variance under N.J.S.A. 40:55D-70(d)(5) to convert a commercial building on his lot into a second house. The local zoning ordinance, however, did not permit two residences on one lot, and so the Board denied the plaintiff’s application on the grounds that the plaintiff failed to prove the requisite positive and negative criteria and that the second house would increase traffic in the area. The plaintiff did not provide enough evidence to carry the burden at the Board hearing, and he was not entitled to a remand to make a better record.

Board Had Right to Waive EIS Requirement
Case: Venusti v. Township of Mahwah Zoning Board of Adjustment,
Appellate Division, A-4258-03T1, Decided June 8, 2005
The Law Division was justified in dismissing the plaintiff’s complaint challenging the grant of a variance to the defendant landowners. The plaintiff objected to the landowners’ application for a variance to put up a one-family house on a vacant lot in the Township’s conservation zone district. As is the custom, the defendant zoning board waived the requirement of an environmental impact statement (EIS) as long as the variance was for a one-family home. Contrary to the plaintiff’s arguments on appeal, the Court declared that: (1) the notice of public hearing was sufficient; (2) the trial court had enough basis to decide whether the EIS waiver was arbitrary, capricious or unreasonable; and (3) the Board had the authority to waive the EIS requirement under the specified conditions.

Sandwich Shop Permitted in Gas Station
Case: Krause v. Township of Cranford,
Appellate Division, A-1958-03T3, Decided June 6, 2005
An order affirming the defendant Zoning Board’s granting of bulk variances and its decision that a use variance was not necessary for the defendant property owner to introduce a permitted use at the site of a pre-existing nonconforming use has been affirmed. Earlier, the plaintiff, a neighboring property owner, had unsuccessfully challenged the defendant owner’s application to open a gas station, which was a pre-existing nonconforming use, at the site. Undeterred, the plaintiff brought another action when, in connection with the defendant owner’s application to convert two service bays in an existing building into a sandwich shop, the Board issued five bulk variances and one of three exceptions. In its ruling, the Court agreed with the Law Division that there was no basis for disturbing the Board’s decision that the defendant owner did not have to get a variance to include a permitted use- the sandwich shop– in the pre-existing nonconforming gas station.

Supermarket Site Plan Wins Approval
Case: Riad Development Co., LLC v. Township of Mount Olive,
Appellate Division, A-2067-03T1, Decided June 13, 2005
The Appellate Division upheld the Law Division’s final judgment in an action affirming the defendant planning board’s approval of the defendant supermarket’s site plan application. Addressing the question of whether the paving issue should have been remanded to the Board for reconsideration, the panel said that the lower court may modify the site plan approval in accordance with the local ordinance, and there would be no benefit to a hearing on the issue. In the Court’s opinion, a remand would have only further delayed the application. As to the denial of the defendants’ motion for attorney’s fees, although the plaintiff was a competitor of the defendant supermarket, the Court saw nothing in the record to suggest that the plaintiff had acted frivolously or in bad faith in pursuing its objections during the Board proceedings and in the action itself.

No Second House Allowed on Single Lot
Case: Kerant Enterprise, Inc. v. Plainsboro Township Planning Board,
Appellate Division, A-5752-03T2, Decided June 9, 2005
The Law Division rightfully upheld the defendant Planning Board’s denial of the plaintiff’s application for a bulk variance and a hardship exception to N.J.S.A. 40:55D-35, according to the Appellate Division. The applicant owned two lots that had to be treated as a single lot for land use purposes under the terms of an earlier minor subdivision approval. The larger of the lots had a house on it, and the owner wanted to put up a house on the smaller lot. Rejection of the house was proper for several reasons, the Court declared. First, the plaintiff knew at the time it bought the lots that, for land use purposes, it was acquiring a single lot. Also, the second lot lacked street frontage and the proposed house would be landlocked in violation of Sec. 40:55D-35 and the local ordinance. Furthermore, the Court decided, the plaintiff’s desire to build a second house instead of demolishing the existing house and building a larger one did not constitute a hardship

Courts Agree on Popeye’s Site-Plan Approval
Case: Jethwa v. Township of Irvington Planning Board,
Appellate Division, 26-2-0514, Decided June 9, 2005
Despite the defendant Township’s objection, the Appellate Division affirmed the Law Division order granting summary judgment in favor of the plaintiff. The Court declared that the Planning Board’s resolution, denying the plaintiff’s application for preliminary and final site-plan approval to put up a Popeye’s restaurant with a drive-thru window and related signage, was arbitrary and unreasonable, contrary to the Municipal Land Use Law and therefore invalid.

Realtor’s New Facility Ruled a Permitted Use
Case: Colony Realty, L.L.C. v. Borough of Red Bank,
Appellate Division, 26-2-0515, Decided June 9, 2005
The Law Division properly granted summary judgment to the defendants, dismissing, as untimely the plaintiff’s challenge to the grant of site-plan approval to K. Hovnanian Properties for the now-complete construction of its corporate headquarters/office building and underground parking garage located on a highway some 400 yards south of the plaintiff’s property. In addition, substantively, an amendment to the municipality’s zoning ordinance made the structure a conforming, permitted use.

Board Abused Its Discretion in Variance Matter
Case: Hackensack Warehouse L.L.C. v. City of Hackensack Zoning Board of Adjustment,
Law Division, 26-3-1153, Decided June 21, 2005
The plaintiff warehouse applied for variance relief in 2004 to give its security personnel a place to prepare and eat food, shower, and rest. But, since a similar application had been denied three years earlier, when the zoning board found that the application’s objective was residential in nature (a prohibited use in the zone), and the plaintiff had nevertheless used the premises in that manner in violation of the zoning ordinances in the interim, the zoning board dismissed the 2004 application completely. Despite the defendant board’s view that the plaintiff had unclean hands, the judge is convinced that the board abused its discretion in reviewing the plaintiff’s application, thereby requiring a remand for an entirely new proceeding

Garden State Plaza Expansion Gets Green Light
Case: Borough of Paramus v. Planning Board of the Borough of Paramus,
 Appellate Division, A-6198-03T3, Decided June 20, 2005
Citing substantially the same reasons stated by the Law Division, an appeals court affirmed a final judgment upholding the defendant Planning Board’s approval of the defendant limited partnership’s application for conditional site plan approval and related variance relief to expand the Garden State Plaza shopping mall. As for the remaining unresolved issue on appeal, the ordinance that the plaintiff Borough adopted post-judgment to clarify the zoning restrictions on the mall expansion should not be considered the determining factor in this case, the Court declared. The lower court already had ruled correctly in a related case that the ordinance does not apply to the variance relief and amended site plan approval which the Planning Board granted to the limited partnership.

‘Entertainment Lifestyle Precinct’ Gains Approval
Case: Borough of Paramus v. Planning Board of … Paramus, et al.,
Appellate Division, 26-2-0670, Decided June 20, 2005
Rejecting the plaintiff borough’s objection that the project would result in over-utilization of the site, the Court affirmed a final judgment upholding the defendant planning board’s grant of conditional site-plan approval and related variance relief to the defendant limited partnership to enable it to build an “Entertainment Lifestyle Precinct”– containing a multiplex theater, restaurants and retail space– by adding approximately 163.296 square feet to its large existing enclosed shopping mall known as the Garden State Mall Plaza.

Landscaping Business Nixed in Residential Zone
Case: Lelli, et ux. v. Capra, et al.,
Appellate Division, 26-2-0628, Decided June 16, 2005
The Law Division was right in reversing a resolution of the Vineland Zoning Board of Adjustment that granted the applicant a use variance to conduct a landscaping business on property located in a residential zone. The court cited two reasons for the decision: (1) The appellant failed to establish the special reasons required to justify a use variance, and (2) the board did not properly address the negative criteria that must be considered before such a variance could be granted.

Setback Restriction Still Applies
Case: Maresca v. Board of Adjustment of … Denville, et. Al.,
 Appellate Division, 26-2-0671, Decided June 20, 2005
The applicants may not construct an addition to their home that would encroach on the setback requirements and negatively impact the neighboring plaintiff’s property. In reversing a grant of side– and front-yard variances to the defendants, the Appellate Division concluded that the defendants did not present sufficient evidence to establish that, because of the exceptional and unique nature of their property, the application of the municipal side-yard setback restriction would result in peculiar and exceptional hardship. Nor was there enough evidence to address the negative criteria in N.J.S.A. 40:55D-70(d).

Board Misconstrued Parking Ordinance
Case: Prologis-Macquarie N.J., II, L.L.C., etc., et al., v. Monroe Township Planning Board, et al.,
Appellate Division, 26-2-0715, Decided June 22, 2005
The key issue in this appeal of the denial of the plaintiff’s application to enlarge the parking lot of an existing warehouse facility is whether the board properly construed a zoning ordinance to ban parking in the entire 635-foot front yard of the warehouse on 37.4 acres, or whether the ordinance merely prohibited parking in the required setback of the front yard. In the appellate panel’s judgment, the board misinterpreted the ordinance, and parking is prohibited only in the required setback of the front yard. Since the trial judge based his decision on the planning board’s construction of the ordinance and affirmed the board’s denial of the application without considering the merits, the appeals court reversed and remanded to the lower court for a determination of whether the board properly denied the application under the ordinance as understood in this opinion.