Previous page 05
rulings
Board May Impose Conditions on Site Plan Approval
Case: DeClement v. Township of Elk, Appellate Division, A-2199-04T2, Decided Nov. 23, 2005
A land use board does not have to rely on an ordinance
that limits a business’s hours of operations when making limited hours a
condition to granting approvals, as long as the restrictions are reasonably
related to the special problems of the site in question. A property owner
gained site plan approval to operate its gas station/convenience store under
the condition that the facility could only be open between 6 a.m. and
midnight. Subsequently, the area that included the location of the service
station was rezoned from rural/agricultural to moderate density commercial
property. Prompted by competitive pressures, the property owner sought to
remove the condition on final site plan approval because there was no
ordinance generally restricting the hours of operation on any business in
the commercial zone. The board denied their application, however. Contrary
to the owners’ appellate arguments, the trial court correctly refused to
set aside the board’s decision because: (1) the store cited by the owners
as a nearby comparable property allowed to operate 24 hours a day was
actually a mile away, was in a different zone and was different from the
owners’ business; and (2) the Board did not deny a permitted use but
instead appropriately exercised its discretion and reaffirmed a safeguarding
condition by reason of the nature, location and incidents of the particular
use.
Subdivision Application Doesn’t Satisfy Ordinance
Case: Cangiano v. Township of Bernards Planning Board,
Appellate Division, A-6510-03T2, Decided Oct. 19, 2005
For the reasons expressed by the trial court, the
Appellate Division affirmed the dismissal of a landowner’s complaint that
challenged the Planning Board’s rejection of his preliminary subdivision
application. Noting that the applicant’s 185,175 acres included
substantial wetlands, the Court observed that the Board had denied the
plaintiff’s application for failure to satisfy the provisions of the
Township’s zoning ordinance (1) concerning tree removal because he had not
supplied information about all necessary tree removal and (2) concerning an
Environmental Impact Assessment because the landowner seemed to minimize the
environmental impact on the wildlife through his consultant’s cursory and
unreliable investigation. Consequently, the appeals court concluded that the
trial court justifiably found that the Board’s decision was not arbitrary,
capricious or unsupported by the record.
Restaurant Can’t Have Variance for Pay Parking Lot
Case: Perk’s Café, L.L.C. v. Point Pleasant Beach Board of Adjustment, Appellate Division, A-3274, Decided Oct. 31, 2005
A property lessee’s complaint challenging the Board of
Adjustment’s denial of his application for a use variance has been denied
substantially for the reasons given by the trial court. The applicant sought
a variance to convert a restaurant parking lot into a pay parking lot that
would be open to the public from 2 p.m. to midnight after the restaurant
closed for the day. In turning down the application, the Board’s major
concerns were: (1) the inconsequential impact on the area’s parking
problems that the nonconforming use in the residential neighborhood would
have due to the proposed small number of parking spaces, and (2) the
potential confusion to motorists because, unlike other parking lots in the
area, the proposed lot would be available for parking only after 2 p.m. The
trial court upheld the Board’s decision after finding that, under the
circumstances of this case, the Board’ prior approval of similar pay
parking lots in other areas of the municipality was not a basis for
overturning the Board’s decision.
Supermarket Application Sent Back to Board
Case: Ahold Corp. v. Board of Adjustment of the Township
of Springfield. ,Appellate Division, A-4021-03T1, Decided Oct. 28, 2005
The Court handed down a mixed decision-affirming in part,
reversing in part and remanding-in this case involving an application for
site plan approval to put up a supermarket. The trial court had issued an
order invalidating the Board of Adjustment’s denial of the application and
approving the site plan with the 25 conditions listed in the Board’s
resolution, plus another condition imposed by the trial court. The Board had
nixed the site plan based on the design of the truck unloading area, but its
decision could not stand because it did not cite any ordinance provisions
that the site plan violated. Even if the Board applied the ordinance that
requires off-street truck loading spaces to provide safe, adequate and
convenient ingress and egress, the judges declared, the trial court
correctly determined that the Board’s decision was unreasonable. However,
the trial court exceeded its authority by imposing the extra condition.
Since the Appellate Division couldn’t determine whether the Board
affirmatively voted in favor of the 25 conditions, remand was necessary for
the Board to determine the reasonable conditions to be imposed on the site
plan approval based on the record as it existed.
Condemnation Order Affirmed
Case: New Jersey Schools Construction Corp. v. Guppy
Holdings, L.L.C., Appellate Division, A-2831-04T3, Decided Nov. 14, 2005
The panel affirmed a final order appointing condemnation
commissioners and the denial of the property owner’s motion to dismiss in
this condemnation action by the New Jersey Schools Construction Corp. The
SCC appraised the property in the presence of its previous owner in August
2002, assigned a fair market value of $40,000, and notified the previous
owner in June 2003 of the SCC’s intent to acquire the property, under the
Eminent Domain Act, in June 2004. The property owner had acquired the
disputed land in a tax sale foreclosure action. When the SCC heard about
that acquisition, it began negotiating with the new owner in August 2004.
After rejecting the SCC’s initial offer, Guppy did not respond to the SCC’s
offer of further negotiations until two days after the complaint was filed
in November 2004. Contrary to the property owner’s argument on appeal, the
SCC did not breach its obligation under N.J.S.A. 20:3-6 to negotiate in good
faith.
Landowner’s Two Lots Did, Indeed, Merge
Case: Rhodes v. City of Cape May,
Appellate Division, A-6473-03T5, Decided Nov. 14, 2005
The Appellate Division reversed a lower court order
declaring that a landowner’s two lots had not merged. After the Planning
board turned down her subdivision application, the landowner filed a
complaint seeking a judgment that her two lots had not merged. When the City
refused to participate, a default was entered against it, and the landowner
moved for a final judgment by default. The landowner’s neighbors then got
involved, asserting that the lots had truly merged and moving to intervene
and vacate the default against the City. After correctly granting the motion
to intervene, the trial court properly denied the neighbors’ motion to
vacate the default in light of the City’s knowing and purposeful decision
to default. The lower court erred, however, in concluding that the City’s
default resolved the issue of merger against the neighbors. Despite the City’s
default, the Court declared that the neighbors were entitled to a full
opportunity to contest the merger issue. They produced sufficient proofs to
require that the matter proceed to trial.
rulings