January 1, 1900

by Thomas F. Carroll, III

This Special Edition of the Quarterly provides summaries of the interesting court cases decided since the last Atlantic Builders Convention. Certain cases are addressed at length elsewhere in this Quarterly.

Green Acres/Open Space Preservation

In First American Title Ins. Co. v. Township of Rockaway, the Appellate Division found that a municipality's failure to obtain state approvals required by the Green Acres Act rendered a conveyance of property void.

Mt. Laurel Issues

A municipality must still employ sound land use planning principles in fulfilling its Mt. Laurel housing obligations. In Shire Inn, Inc. v. Borough of Avon-by-the-Sea, the denial of a builder's remedy that perpetuated and expanded a pre-existing nonconforming use was upheld by the Appellate Division.

Environmental

There were many decisions that dealt with the environmental impact of construction. The Department of Environmental Protection's preemption rights were upheld by the Appellate Division in two cases. In Tumino v. Long Beach Township, the Appellate Division found that the coastal zone management rules establish a comprehensive scheme governing the siting and design of recreational docks, thereby preempting any municipal legislation to the contrary. In Carmine Forgione & Sons, Inc. v. Bernards Township., the Appellate Division found that a municipality's legitimate interests in noise control and quality of life could not be advanced in a manner contrary to the DEP's directives.

Use Variances

The "arbitrary and capricious" standard was addressed in two cases decided by the Appellate Division. In Funeral Home Management, Inc. v. Basralian, the Appellate Division found that, although property may be eligible for a use variance if it is particularly suitable for a use, such a showing was not made in this case, and the grant of a use variance was therefore arbitrary and capricious. Similarly, the Appellate Division, in Scholastic Bus Co., Inc. v. Zoning Bd. of the Borough of Fair Lawn, held a zoning board's denial of a use variance to be arbitrary, capricious and unreasonable because the board failed to consider whether special conditions would reduce the detrimental effects of the applicant's intended use.

An ordinance requiring that a conditional use applicant demonstrate that the use would not substantially impair the use and enjoyment or the character of the surrounding property was held by the Appellate Division to be too vague and, hence, invalid in Lincoln Heights Assoc. v. Township of Cranford Planning Bd.

Site Plan Applications

In a decision with two important ramifications, the Law Division stated that municipal planning boards may require applicants to submit to a hearing before the board of health without violating the Telecommunications Act of 1996, which preempts all other laws concerning wireless communications and radio frequency emissions. Sprint Spectrum, L.P. v. Township of Warren Planning Board. The decision also stated that the condition that the applicant submit to a board of health hearing as part of the application is not an impermissible delegation of the board's decision-making power, since there is nothing in the Municipal Land Use Law that prohibits the procedure, and the Board of Health input is advisory only.

Redevelopment Areas

A Law Division court has held that municipal ownership is only one prerequisite for a municipal declaration of redevelopment. New Jersey law also requires substantial evidence that the site is not likely to be developed through the instrumentality of private capital. Winters v. Township of Voorhees.

Rezoning

In some good news for builders, the Appellate Division held, in TWC Realty Partnership v. Zoning Bd. of Adjustment of the Township of Edison, that a board of adjustment cannot refuse to hear a variance application on the grounds that the application is tantamount to a rezoning request. In Willoughby v. Planning Board of the Township of Deptford, the court found that a municipal board's failure to make a specific finding of inconsistency between the master plan and a zoning ordinance would result in a remand. Although the majority of the governing body voted for the inconsistent ordinance and stated reasons for the adoption on the record, this was not sufficient to satisfy the Municipal Land Use Law.

DCA's Residential Site Improvement Standards

In a case in which the New Jersey Builders Association participated as a "friend of the court," the Supreme Court upheld the validity of the Residential Site Improvement Standards (RSIS) in New Jersey State League of Municipalities v. Department of Community Affairs. A municipality may still challenge specific regulations as applied to specific local ordinances if they allegedly conflict with local zoning policy. However, the burden to do so is on the municipality and development applications are to be processed pursuant to the RSIS standards.

Nonconforming Uses

In Ferraro v. The Zoning Board of the Borough of Keansburg, the Appellate Division found that, unless the burden of establishing the existence of a nonconforming use is met, the issue of abandonment of that use cannot be reached. A nonconforming use is established if the use was at one time lawful, and became unlawful thereafter because of a change in zoning. In Rogers v. Zoning Bd. of Adjustment of the Village of Ridgewood, the Supreme Court found that a pre-existing, nonconforming sign that advertises a permitted business within a building does not lose its protected status when the wording on the sign is changed to advertise a different permitted business within a building.

In Financial Svcs, LLC v. Zoning Board of Adjustment of the Borough of Little Ferry, the Appellate Division found that a nonconforming check-cashing business could not be an accessory or second principal use to the current nonconforming use of the property as a gas station.

Condemnation

In two cases, the courts shed light on who can condemn and what can be condemned. Because the power of eminent domain has not been granted to boards of fire commissioners, the Appellate Division found that they cannot exercise powers of condemnation. Board of Fire Commissioners, Township of Millstone v. Cascella. In Casino Reinvestment Development Authority v. Banin, the Law Division held that the primary interest served by the condemnation of a private residence for a parking lot was private rather than public and, thus, inappropriate. Condemnation awards were also examined. In Casino Reinvestment Development Authority v. Hauck, the Appellate Division held that state law unambiguously states that interest on condemnation award is payable from the date of the commencement of the condemnation action until the date of the payment of the award, rejecting the plaintiff's arguments that the earlier date of valuation should control. In New Jersey Turnpike Auth. v. Michael Feldman Assoc., the Appellate Division held that the condemnor need only deposit into court an amount equal to the appraisal upon filing of a condemnation complaint, even if a later condemnation award is higher than the appraisal.

Takings

The courts looked at what was a compensable taking in two cases with mixed results. Where a property owner is given reasonable means of alternate access to a state highway after the original access is condemned, there is no taking. State of New Jersey, Commissioner of Transportation v. Dikert. However, a compensable taking was found where the defendant lost his ocean view, beach access and privacy due to the erection of a sand dune on his property. City of Ocean City v. Maffucci.

The Supreme Court in Karam v. State of New Jersey, Department of Environmental Protection reaffirmed that a plaintiff must be deprived of all viable economic use of the land in order to win an inverse condemnation claim. The DEP's denial of a dock permit was not considered a taking, as the land owner was still able to use the land for other purposes.

And in Essex County Improvement Auth. v. RAR Develop. Assoc., the court considered the issue of abandonment of a condemnation action by the government. It held that, if the condemnation action is abandoned by way of a letter from a governmental agency, together with the passage of resolutions by the agency evidencing intent to abandon the action, the agency may not attempt to later revive the same condemnation action.

Assisted Living Facilities

In Meridian Hospitals Corp. v. Borough of Point Pleasant, the Appellate Division held that the Department of Health and Human Services had the duty to review a plaintiff-hospital's proposal to decommission its acute care services. This proposal was therefore not reviewable by the municipality, and could not affect a special reasons variance application to the municipal board of adjustment.

Thomas F. Carroll, III also a partner of Hill Wallack, is a member of the firm's Land Use Division. He also serves on the NJBA's Land Use and Planning Committee and its Site Improvement and Infrastructure Standards Committee. A Member of the Board of Directors of the NJ State Bar Association's Land Use Section, he concentrates his practice in the development application process and the litigation required in the course of land development.