Case Law Summaries

In Re Amendment to Recreation and Open Space Inventory of the City of Plainfield

GREEN ACRES— Once a property, actually then used for park purposes, receives Green Acres funding, even when its listing on the municipality erroneously listed the property on its application the associated Green Acres restrictions cannot be administratively lifted.

• Opinion Date: July 18, 2002
• Real Property Law

Bankers Trust Company of California, N.A. v. Gillman

FORECLOSURES—Where a mortgage has been assigned but the assignment has not been recorded and has been lost, the mortgagee of record is a proper plaintiff in a foreclosure action.

• Opinion Date: December 30, 2002
• Real Property Law

W.E.W. Associates v. Township of Randolph

ZONING; WETLANDS; LETTERS OF INTERPRETATION—A zoning board can’t consider whether a wetlands Letter of Interpretation issued by the Department of Environmental Protection was supported by the evidence because such a letter is dispositive of the issue.

• Opinion Date: March 5, 2003
• Real Property Law

State of New Jersey v. Evans-Weinberg

ZONING; VIOLATIONS; PENALTY—A fine is cruel and unusual punishment only if it shocks the conscience or is fundamentally unfair and a fine calculated to disgorge profits earned by violating a zoning ordinance does not rise to that level.

• Opinion Date: January 2, 2003
• Real Property Law

United National Bank v. Zoning Board of Township of Tewksbury

ZONING; VARIANCES; WAIVER—Seeking a large and diverse group of variances and waivers does not impermissibly transform an application into a de facto re-zoning.

• Opinion Date: June 11, 2003
• Real Property Law

Nextel of New York, Inc. v. Borough of Englewood Cliffs Board of Adjustment

ZONING; VARIANCES; TELECOMMUNICATIONS—A land use board may base its use variance decision that no coverage gap exists on statements, within a cellular telephone carrier’s own advertising literature, that the carrier has full coverage throughout the county.

• Opinion Date: June 3, 2003
• Real Property Law

Scully-Bozarth Post #1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington

ZONING; VARIANCES; PROCEDURE—There is no mandatory two-step procedure for adopting and then memorializing a land use resolution and it is not necessary for each board member to acknowledge on the record that he or she read, understood, and agreed with the memorialization so long as there is an indication that he or she participated in the related deliberations.

• Opinion Date: July 21, 2003
• Real Property Law

Taggart v. Borough of Spring Lake Planning Board

ZONING; VARIANCES; NON-CONFORMING USES—While, under certain circumstances, aesthetic improvement can be a qualifying “special reason” to support the granting of a use variance, a board need not grant a variance based upon that reason, especially if the property can be used as is or can be brought into conformance with the applicable zoning ordinance.

• Opinion Date: April 8, 2003
• Real Property Law

DeSena v. Township of North Bergen

ZONING; VARIANCES; NON-CONFORMING USE—In considering issuance of a variance that would “legalize” a non-conforming use, a zoning board should give equitable consideration to the length of the non-conformity and any lack of harm to the surrounding neighborhood.

• Opinion Date: June 17, 2003
• Real Property Law

Smith v. Borough of Fair Haven Zoning Board of Adjustment

ZONING; VARIANCES; HISTORIC STRUCTURES—Where there is no evidence that an applicant intends to demolish an historic structure if a variance is not granted, it is not proper to grant the variance based upon the mere possibility that the structure might otherwise be demolished.

• Opinion Date: May 22, 2003
• Real Property Law