Cellular Facilities Permitted on Existing Tower
Case: New York SMSA v. Zoning Board of Adjustment of the
Town of Edison, Appellate Division, A-3872-04T3, Decided Jan. 5, 2006
Citing the same reasons expressed by the trial court, the
Appellate Division affirmed a final judgment declaring that the Zoning Board
wrongfully denied the telecommunications company’s application for
preliminary and final site plan approval and for use and bulk variances. The
company wanted to put a 12-foot antenna on an existing 103-foot transmission
tower and to place an equipment shelter inside a fenced compound at the foot
of the tower. As to the N.J.S.A. 40:55D-70(d) positive criteria for a use
variance, the record conclusively showed that the Board’s preferred site
for the antenna was unavailable and that the tower site was peculiarly
suited for this use. In reference to section 40:55D-70(d) negative criteria,
the Zoning Board misapplied the balancing test set forth in Sica v. Board of
Adjustment where the impact of adding the antenna to the tower was minimal
and where there was no detrimental impact on the public.
Property Owner Wins OK to Develop a Restaurant
Builders May Link Townhouse to Sewer System
Case: Norian v. Planning Board of the Borough of Alpine, Appellate Division, A-3163-04T1, Decided Jan. 3, 2006
A lower court order authorizing the developers to connect
their proposed seven-unit townhouse development to an off-site sanitary
sewer system was affirmed by the Appellate Division. The Borough’s
wastewater disposal policy generally required the use of on-site systems.
The trial court correctly held that the Planning Board improperly denied the
developers’ application for site-plan approval because the application
conformed to the standards set forth in the Borough’s zoning ordinance and
because the Planning Board could impose appropriate conditions- including
permits, easements and approvals- but could not deny the site plan due to
failure to obtain those items in advance. Addressing the trial court’s
final judgment, which was entered after the Planning Board granted
preliminary site plan approval and imposed many conditions that the
developers challenged, the appeals court affirmed the trial court’s
conclusion that that authorization for the connection to an off-site system
was an implied condition of an earlier settlement agreement in a builder’s
remedy action by the developers against the Borough under the Mount Laurel
doctrine.
Developer Allowed to Build Single-Family Homes
Case: Suburban Real Estate Development Corp. v Edison Township Planning Board,
Appellate Division, A-2688-04T1, Decided Dec. 16, 2005
A trial court judgment that reversed the Planning Board’s
denial of the developer’s application for preliminary and final
subdivision approval has been affirmed. The developer sought to put up
single family homes on 11 lots, three of which would have access to Vineyard
Road, which the Planning Board considered to be heavily traveled. The
Planning Board turned down the application, despite finding that the plan
had met all the requirements for the zone and that no variances were needed.
In the Appellate Division’s opinion, however, the lower court properly
determined that the Planning Board was wrong to deny the application for
lacking the authority to prohibit a permitted use based on its belief that
the plan was an overuse of the property. The Board also erred by concluding
that the plan would cause excessive traffic on Vineyard Road, and by
assuming, without any basis, that homeowners with lots fronting on Vineyard
Road would hinder traffic by backing into the road from their driveways. The
panel also rejected the Planning Board’s assertion that the plan did not
comply with the Township’s design standards for heavily traveled arterial
roads.
Ordinances Enacted Without Notice Ruled Invalid
Case: Elite Development, L.L.C. v. Mayor and Council of
the Township of Kearny, Appellate Division, A-2911-04T1, Decided Jan. 11, 2006
Two ordinances that amended the municipality’s zoning
ordinance were declared void because they were enacted without the notice
required by N.J.S.A. 40:55D-62.1. In affirming a lower court decision, the
Appellate Division found “ample factual support” for the Law Division’s
ruling that the two ordinances were not adopted in accordance with a general
re-examination of the Town’s master plan. Thus, the Law Division correctly
determined that the two ordinances were invalid because the notice required
by section 40:55D-62.1 was not provided.
Cell Tower Allowed under Ordinance Amendment
Case: Citizens United to Protect the Maurice River and
Its Tributaries, Inc. v. Township of Maurice River, Appellate Division, A-2142-04T1, Decided Jan. 24, 2006
Citing substantially the same reasons stated by the trial
court, the Appellate Division affirmed the dismissal of a nonprofit
environmental organization’s action that challenged the validity of an
amendment to the Township’s zoning ordinance. Before the amendment, the
ordinance had prohibited more than one principal use per lot but had
permitted cellular towers as conditional uses in certain zoning districts.
The amendment also prohibited more than one principal use per lot, but it
made an exception for certain local communications facilities. In the trial
court’s opinion, even though a cellular tower could not be an accessory
use to a primary use, the Township could permit by ordinance a mixed-use
concept or a multiple principal use concept. Also, the provision permitting
a cellular tower to be a second principal use was justified because a
cellular tower is more of a benign use than an intensive use. Thus, the
lower court concluded that the appellant failed to overcome the presumption
of validity for the amendment.
Borough Can’t Halt Restoration of ResidenceCase:
Borough of Mantoloking v. Fitzgerald, Appellate Division, A-3829-02T3, Decided Jan. 25, 2006
A court order that dismissed the Borough’s complaint
seeking temporary restraints to stop the home owner from further
construction on his oceanfront residence and that directed the Borough to
issue a certificate of occupancy for the residence has been affirmed. The
Borough opposed the extensive renovation of the residence, which was exempt
as a nonconforming use from the setback requirements of the Borough’s
zoning ordinance. The trial court correctly concluded that the Borough was
equitably estopped, under Howland v. Borough of Freehold, from obtaining
relief. The record supported the findings that the expansion of the
residence’s upper stories into open space beyond the foundation’s
footprint did not require any alteration to the foundation itself. The Court
also saw no evidence of bad faith by the applicant in seeking permits or by
the construction code or zoning officials. The defendant relied in good
faith on permits issued by Borough officials and was not told that he needed
a variance for the expansion. In addition, the application spent thousands
of dollars in reliance on the validity of the permits and on the Borough’s
acquiescence to the ongoing construction.
Fire Arms Business Shot Down
Case: Comly v. Zoning Board of Adjustment of Township of
West Amwell, Appellate Division, A-2935, Decided Jan. 23, 2006
An attempt to put up a two-story, 2000-square-foot
free-standing building for the operation of a firearms business in the R-2
residential zone has been shot down by the courts. In affirming the lower
court’s reversal of the Zoning Board’s grant of a use variance to the
applicant, the appeals court gave the same reasons offered by the trial
judge. The variance seemingly had been granted under N.J.S.A. 40:55D-70d(3)
as a conditional use variance for a home occupation, which was a permitted
conditional use in the R-2 zone; however, the trial court held that the
applicants’ proposal to operate their business entirely in an accessory
building did not fit within the definition of “home occupation”
contained in the municipal zoning ordinance. Moreover, the court found, the
deviation from the definition was not insignificant. Consequently, reversal
was required, even if the use variance had been granted under section
40:55D-70d(1).
Conditional Use Variance for Townhouse Denied
Case: Twin Oaks Realty Development, LLC v. Zoning Board
of Adjustment of the Township of Cranford, Appellate Division, A-2687-04T5, Decided, Jan. 30, 2006
The Appellate Division affirmed a Law Division order
upholding the Zoning Board’s denial of multiple variances required for the
developer to put up a 36-unit townhouse development. The developer applied
for a conditional use variance because its plan exceeded the density
permitted by the municipality’s land-development ordinance. The trial
court correctly focused on the conditional use variance because the main
thrust of the developer’s application was its desire for 36 units instead
of the 26 units that were allowed in the zone. The Law Division properly
applied Coventry Square, Inc. v. Westwood Zoning Board of Adjustment and
correctly concluded that the developer had failed to satisfy both the
positive criteria and the negative criteria for the conditional use
variance.
Nonconforming Lot Can’t Be Subdivided
Case: Ashforth v. Planning Board of the Township of
Westfield, Appellate Division, A-4684-04T5, Decided Feb. 10, 2006
A Law Division order tossing out a property owner’s
challenge to the Planning Board’s denial of their variance application was
affirmed by the Appellate Division. In an attempt to subdivide their
conforming lot into two nonconforming lots, the applicants sought variances
from the requirements for lot width at the setback line, frontage and area.
Although the Planning Board’s resolution improperly set forth the findings
of fact obliquely in the form of a discussion of the comments of the Board’s
members, rather than as findings of the Board as a whole, the Court said, no
remand was required because the record strongly supported the clear
consensus of the Board members. In addition, the property owners’
application was faulty as a matter of law in that it failed to
satisfy the requirements of N.J.S.A. 40:55D-70c(1) and N.J.S.A.
40:55D-70c(2) or the negative criteria of N.J.S.A. 40:55D-70.
Court Issues Split Decision on Senior Housing
Case: Caliber Builders Inc. v. Zoning Board of Adjustment
of the Borough of Paramus, Appellate Division, A-3357-04T2, Decided Feb. 21, 2006
The Appellate Division reversed in part and affirmed in
part a Law Division judgment that reversed the Zoning Board’s denial of a
use variance to the builder and that determined that the Zoning Board did
not violate the federal Fair Housing Amendments Act of 1988. The builder
sought to erect a housing complex for independent and semi-independent
senior citizens, but about 90 percent of the lot was in a flood plain area.
Even though the complex was an inherently beneficial use, it could be
excluded if the negative factors were “weighty” and constituted a
substantial detriment to the public good. In view of the Zoning Board’s
concerns about traffic and flooding, its conclusion– that the detrimental
effects of the proposed use substantially outweighed the positive effects
and could not be mitigated– was not arbitrary or unreasonable. Thus, the
Zoning Board’s denial of the use variance should have been affirmed. The
Law Division was correct, however, in turning down the builder’s claim
under the Act that a municipality must make reasonable accommodation for a
congregate care facility within its borders.
Trial Court Erred by Reversing Zoning Board
Case: Kyriacou v. Lavin, Appellate Division, A-1163-04T3, Decided Feb. 17, 2006
In an action that challenged a variance granted by the
Zoning Board to the defendant property owners, the Court overturned a
summary judgment in favor of the plaintiff neighbors. Neither of the owners’
lots had the 100 feet of street frontage required for development without a
variance. The very narrow issue considered by the trial court was whether
the Zoning Board’s engineers gave unsworn testimony in response to
questions from the Zoning Board’s members and, if they did, whether the
Zoning Board’s decision had to be reversed under N.J.S.A. 40:55D-10d. This
section provides that the testimony of all witnesses concerning an
application for development shall be taken under oath. The Court decided
that the engineers’ participation at the Zoning Board hearings was not
testimony, and even if it was, the lower court was wrong to reverse the
Board’s decision because the property owners were not at fault and because
any prejudice to the neighbors was minimal at best.
Township Has Right to Limit Airport Activities
Case: Jump v. Township of Andover, Appellate Division, A-6608-03T2, Decided March 9, 2006
An airport owner lost its appeal to prevent the Township
from regulating aeronautical activities at the facility. The Appellate
Division affirmed a lower court ruling which vacated a 1969 consent judgment
that provided the nonconforming airport uses and structures could continue
to be used and operated, and that limited aeronautical activities at the
airport to activities that existed in 1969. In 1988, the Township amended
its zoning ordinance to comply with N.J.A.C. 16:62, requiring municipalities
with airports to recognize the airports as permitted uses and to incorporate
the standards of the New Jersey Air Safety and Zoning Act into their
ordinances. This action revolved around the operation of a skydiving and
parachute business at the airport that used buildings not in use in 1969.
Contrary to the owners’ argument on appeal, the airport’s State license
did not preclude the Township from restricting activities authorized by the
license.
Previously Granted Variances No Longer Valid
Case: Four Mile Branch Associates, LLC v. Township of
Monroe Planning Board, Appellate Division, A-3870-04T5, Decided March 7, 2006
The Court upheld the dismissal of a property owner’s
action challenging the Planning Board’s determination that the variances
it had granted in 2002 were no longer valid and the Board’s denial of the
owner’s second application for preliminary major subdivision approval. The
owner proposed to build 35 single-family homes on its 31-acre tract. In
2002, the Board granted some of the required variances but denied the owner’s
application for preliminary major subdivision approval. A year later, the
owner filed the second application, which included fewer lots to eliminate
the need for the variances that the Board denied in 2002 but which required
the variances that were granted in 2002. After informing the owner that the
2002 variances were ineffective, the Board in 2004 turned down the second
application and the variances for which the owner had reapplied. Contrary to
the owner’s argument on appeal, the Court declared that (1) the variances
were not granted unconditionally in 2002; (2) the 2002 application was not
bifurcated, and the grant of variances thus did not survive the denial of
the first application; (3) the variances did not run with the land, and (4)
the Board’s 2004 denials were not arbitrary, capricious or unreasonable.
Site Plan Approval Not Needed for Renovation
Case: Whala v. Township of Kearny, Appellate Division, A-3841-04T5, Decided March 16, 2006
A commercial property owner has won its case in an action
alleging that it had obtained a building permit to renovate its building
without obtaining the necessary site plan approval. The courts, however,
denied the property owner’s application for sanctions under Rule 1:4-8 for
frivolous litigation. The plaintiff owned a pizzeria on the same street as
the defendant’s building, and he tried to prevent the defendant’s
tenant, a Domino’s Pizza franchise, from securing a certificate of
occupancy and from operating. The municipal construction code official
certified in support of the property owner’s summary judgment motion that
site plan approval was not required because the size of the building did not
increase. The trial court determined that the official had acted in good
faith when he issued the permit, that the property owner had relied on the
official’s issuance of the permit, and that equitable estoppel thus would
bar the plaintiff’s claim, even if the official’s actions were
debatable. The lower court correctly granted summary judgment, and it
rightly denied the property owner’s request for sanctions, the Appellate
Division concluded.
Landowner Loses 20-Year Battle with Township
Case: Yadav v. Township of West Windsor, Appellate Division, A-2329-04T3, Decided March 17, 2006
Over 20 years of litigation between a landowner and a
municipality ended with the dismissal of the landowners’ most recent
complaint. The long dispute between the parties began when the landowners
sought approval for a major subdivision. The trial court correctly concluded
that collateral estoppel precluded this action. In 1987, the Superior Court
had ruled that the Township’s 1985 resolution, which was subject to
numerous conditions, did not violate the landowners’ civil rights or the
1983 consent order between the parties. The U.S. District Court had
concluded, in more than one decision, that the landowners had no viable
claim that the Township had violated their rights under the U.S.
Constitution by denying their application for subdivision approval. Previous
cases also included rulings on the merits of the landowners’ claims that
the Township had violated their rights by failing to continue to comply with
the consent order. Landowners had been parties to all of the earlier actions
and had been given a full and fair opportunity to litigate their claims, the
panel declared.
Timeliness Is Key to Court’s Reversal
Case: Broadhurst v. Township of Holland Planning Board, Appellate Division, A-3892-04T1, Decided March 23, 2006
A trial court’s dismissal of the plaintiffs’ action
that challenged the Planning Board’s grant of preliminary and final major
subdivision approval to the applicant has been reversed and remanded. The
lower court had concluded that the plaintiffs had not filed their action
within a reasonable time after the grant of preliminary approval. Although a
notice of the Board’s resolution memorializing the preliminary approval
had to be published in accordance with N.J.S.A. 40:55D-10(I), neither the
Board nor the applicant published the notice. The plaintiffs’ attorney
advised them that they had 45 days under Rule 4:69-6(b)(3) from the date of
publication to file their action, which they did 415 days after the
memorializing resolution was adopted and 41 days after the notice was
published. The applicant could not invoke the 45-day limitations period
because he had not strictly complied with the publication requirements
contained in section 40:55D-10(i) and Rule 4:69-6(b)(3), and he was not
entitled to equitable relief because he had been represented by counsel and
had filed a series of applications to develop property for commercial
purposes.
Court Declines to Find Abandonment
Case: Jock v. Zoning Board of Adjustment of the Township
of Wall, Appellate Division, A-142-02T3, Decided March 23, 2006
A final judgment affirming the Zoning Board’s approval
of the buyers’ application for variances to build a single-family
residence on a nonconforming lot was upheld on remand from the N.J. Supreme
Court for consideration of the issues that the Appellate Division had not
previously reached. The buyers relied on a 1959 side-yard variance.
Addressing the plaintiffs’ arguments on appeal, the appeals court
concluded that the record did not support a finding that the 1959 side-yard
variance for the lot was abandoned. Further, the Court refused to adopt a
principle of law that would call for a finding of abandonment under the
facts of this case just because no actions were taken in fulfillment of the
variance for a considerable period of time. Even if the Board did engage in
unlawful zoning by contract when it granted the 1959 variance following the
former lot owners’ transfer of a drainage easement to the Township, the
Court declared, that action was voidable rather than void, and any attack on
the 1959 variance was time- barred.
School May Build Garage in Education Zone
Case: Fund for a Better Waterfront, Inc. v. City of
Hoboken Zoning Board of Adjustment, Appellate Division, A-5677-04T5, Decided March 31, 2006
A Zoning Board’s decision to grant some 20 variances to
Stevens Institute of Technology to build a four-story parking garage in a
higher education zone district has been affirmed by the Appellate Division.
The garage was a conditional use in the district, the panel noted, and the
Law Division correctly decided that the variances did not substantially
alter the character of the district, but furthered the purpose and intent of
the zone plan, the zoning ordinance and the MLUL. The reasons cited were
that there were no residential uses adjacent to the garage site, and the
garage would benefit neighboring properties, would bring Stevens closer to
conformity with the zoning ordinance’s parking-space requirements, and
would reduce the number of vehicles looking for street parking. Although the
garage would be situated on a small portion of the district and required
numerous variances, the court declared, case law did not require reversal
because there was no evidence that the Board had improperly arrogated to
itself the power to substitute its idea of an appropriate zone plan.
City Can Take Another Public Entity’s Land
Case: Asbury Park Board of Education v. City of Asbury
Park, Appellate Division, A-1076-04T1 and A-1216-04T1, Decided
April 6, 2006
A lower court judgment in favor of the City and its
designated redeveloper in an action that challenged ordinances authorizing
the acquisition by eminent domain of property belonging to the Board of
Education and the commercial property owner in accordance with the City’s
amended waterfront redevelopment plan has been affirmed. Each plaintiff
conceded that the success of its challenge depended on the success of the
other plaintiff’s challenge. Rebuffing the appellants’ arguments, the
Court ruled that the City could take by eminent domain property that was
owned by another public entity and that was devoted to a public use. Also,
the Court said, the Board was not an alter ego of the state. Further, the
amount of funding that the Board received as an Abbott district was
fundamentally immaterial to the legal issue in this case. Finally, the Court
declared, the trial court’s procedure did not offer a basis for further
proceedings, even though the procedure, which did not allow the parties to
proceed to discovery on the issue of the proper balancing of the competing
interests, was factually troubling.
Medevac Choppers Given Clearance at Airport
Case: Somerset Air Service Inc. v. Township of Bedminster Law Division, Somerset County, SOM-L-419-06, Decided
April 4, 2006
On the return of a March 20, 2006 order to show cause
regarding the continued use of medevac helicopters at Somerset Airport, the
Law Division (1) enjoined the defendant Township, the zoning officer, and
the Township engineer from interfering with medevac operations at the
airport and stayed all proceedings relating to medevac operations at the
airport; (2) declared that medevac operations are a permitted use at the
airport; and (3) declared that jurisdiction for the plaintiff airport
operator’s application for site plan approval was vested in the Township
Planning Board, to which the matter was remanded. Also, the plaintiff’s
special use permit to operate temporary medevac-support facilities at the
airport, as extended, expired Feb. 28, 2006, and the plaintiff received a
letter from the zoning officer on March 9 ordering it to remove its
temporary office trailer within 15 days unless it obtained final approval to
build permanent hangar and office facilities. Citing case law, the judge
concluded that the plaintiff was entitled to continued preliminary
restraints against interference with medevac operations at the airport, that
medevac operations are a type of helicopter use, which was a permitted use
at the airport, and that the Township Board of Adjustment had no
jurisdiction.
Borough, Applicant Urged to Seek Remedy
Case: Dell’Olio v. Borough of North Plainfield, Law
Division, Somerset County, SOM-L-1456-01 and SOM-L-1749-01, Decided April 6,
2006
The court considered the Borough’s motion to reconsider
a 2005 order, entered by a different judge, that found the Borough had
breached a 2001 consent order that resolved a 1998 lawsuit about the use of
a carriage house on the plaintiff’s property. Both parties were directed
to submit briefs and affidavits on the subject of a remedy. The 2005 order
stated that the old consent order, which required the Borough to take no
action while the applicant’s subdivision proposal was pending, was
violated when the Borough adopted an ordinance to change the zoning of the
applicant’s property, amounting to a breach of contract. The Planning
Board had dismissed without prejudice the plaintiff’s application based on
the ordinance. Following the Law Division’s suggestion, the Borough argued
on reconsideration, citing a previous case, that it could not contract away
its zoning power and that it had to keep the right to rezone. The Law
Division agreed, but the May 2005 order did not violate the doctrines of
contract zoning because it merely set forth the finding of the breach and
because it did not require that the applicant receive money damages or that
the consent order be specifically enforced. The parties had to address
whether a remedy other than the reinstatement of the 1998 lawsuit was
available to the applicant.
Court Affirms Site Plan Approval
Case: Cornell Heights Association v. Hamilton Township
Planning Board, Appellate Division, A-5597-04T5, Decided April 28, 2006
Citing substantially the same reasons given by the trial
court, the Appellate Division affirmed the judge’s final order in an
action that upheld the Planning Board’s approval of the applicant’s
final site plan request. The hearing on the fully conforming site plan began
at 7 p.m. and continued until 1:20 a.m., and 41 members of the public
testified and raised questions according to a procedure that was announced
at the beginning of the hearing. The questions were posed by the Chairman of
the Board or the applicant’s attorney. The trial court correctly concluded
that the cross-examination procedure and the failure to continue the hearing
(1) did not undermine the fundamental fairness of the hearing or the
purposes of the MLUL, and (2) did not cause prejudice to the plaintiffs.
Although the procedure used at the hearing might not have been envisioned by
the Legislature, there was no basis to disturb the decisions that followed.
Dunkin’ Donuts Franchise Can Serve Sandwiches
Case: LTR Corp. v. Township of Edison Zoning Board of
Adjustment, Appellate Division, A-4546-04T1, Decided April 28, 2006
The operator of a Dunkin’ Donuts/Baskin Robbins
franchise will not have to adhere to a restriction on the sale of sandwiches
to the public imposed by the local Zoning Board of Adjustment. An appeals
court upheld a Law Division judgment that vacated this restriction
substantially for the reasons expressed by the trial court. The restriction
was contained in the Board’s resolution that approved the applicant’s
request for a use variance to run the franchise. The Law Division correctly
found the restriction to be arbitrary, capricious and unreasonable because
the evidence established that there would be essentially no difference in
the operation of the facility, whether it sold sandwiches or not. The panel
dismissed the Board’s claim that its decision was supported by the record
and was related to a legitimate land use objective.
Check Cashing Firm Can’t Cancel Competition
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