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Baywick Plaza, LLC v. Berkeley Township Planning Board

A-2669-04T1 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING — Since the granting of a variance is fact specific and particular to the area, considerable deference is given to land use boards because local boards have the best knowledge of the areas and its needs.

A property owner applied to the planning board to demolish a dilapidated building on its property and to build a retail chain store. The application proposed forty-nine parking spaces, fifteen of which were to be reserved for possible further construction, a large free standing sign, and a wall sign. According to the municipality’s zoning ordinances, the proposed number of parking spaces were too little relative to the size of the store, and the free standing sign was too big. The property owner requested a variance, but engineers for the board called for more information as to the feasibility of the parking proposal, and both municipal and state environmental commissions informed the board that parking spaces, which were designed to be banked, had to comply with state regulations. The property owner submitted a new application calling for a smaller building and eliminating the banked parking. The engineers for the board were satisfied with the revised proposal.

Some of the board members were absent on some of the days that hearings were held. The owner of a shopping center across the road, which had the same retail store as a tenant, objected to the variance application. The retailer planned to move its store from the shopping center’s site to the property owner’s site. At the hearings, the property owner offered expert testimony that the development of the property, entailing a smaller structure and a reduced number of parking spaces than was originally proposed, would be an environmental and an aesthetic improvement. The plan included a new building, parking spaces, landscaping, and the preservation of green space. The property owner’s experts also testified that the proposal for a reduced number of parking spaces was adequate to accommodate patrons and employees, and also that the proposed size and placement of the sign would make it and the parking lot’s entrance more easily seen by customers. The board approved the application on the condition that the property owner make certain improvements to mitigate the negative effects of the variance for the reduced number of parking spaces.

The shopping center owner brought an action challenging the approval. The lower court upheld the board’s decision as reasonable but remanded the issue back to the board for verification that the board members who were absent from the hearings had read the transcripts before voting, clarification that the terms of the variance ran with the land, and a determination as to whether a buffer variance was necessary. On the remand, the board amended the resolution to require the property owner to submit a new application if it wanted to add parking spaces to accommodate any changes to the property. The board also offered verification that the members who had missed any part of the hearings did in fact read the transcripts before voting, and that a buffer variance was not necessary. The shopping center owner appealed the board’s revised decision and commenced another action. The lower court upheld the amended resolution as legally sound, and found that the buffer variance warranted no consideration. The lower court also held that the property owner’s unpaid taxes did not deprive the board of jurisdiction to approve the amended resolution.

The shopping center owner appealed further, claiming insufficient evidence, legal inadequacy, court error in not disqualifying the expert engineers testifying for the property owner, the legitimacy of votes cast by absent board members, that the applicant’s unpaid taxes should have stripped the board of its jurisdiction, and insufficient facts. The Court found no merit in any of the claims but discussed the issues raised on appeal.

The shopping center owner’s contention that the board’s decision in favor of the variance was arbitrary, capricious, and unreasonable was rejected by the Court, noting that a variance considers that an area of land may be suitable for a particular use, but also imposes on legal restrictions on that use. Since the granting of a variance is fact specific and particular to the area, considerable deference is given to land use boards because local boards have the best knowledge of the area and its needs. The Court also pointed out that unless a board is found to have abused its discretion and acted unreasonably, arbitrarily or capriciously, no court may substitute its judgment for that of the board. A party requesting a variance must satisfy positive criteria, reasons why the variance would be beneficial, and counter negative criteria by providing evidence showing that the granting of the variance will not have a detrimental effect. The Court found, based on the evidence and expert testimony, that the board had acted reasonably in granting the variance. The shopping center owner’s claim that the board did not include specific findings of fact and conclusions in the approved resolution was also rejected. The Court pointed to specific findings in the language of the board’s resolution indicating why the passing of the variance would be beneficial and not detrimental to the community.

The shopping center owner also appealed on the grounds that engineers for the board had a conflict of interest because their firm had represented an affiliate of the applicant years earlier in a different municipality. The lower court’s finding that passage of time, along with the circumstances of the application and the location in a different county, weighed against a finding of a conflict of interest, was upheld. The Court further pointed out that the engineers serving on the board were not aware of their firm’s prior representation of the property owner’s affiliate. The Court also rejected the shopping center owner’s contention that the board members who missed portions of the hearing voted before certifying that they read the transcripts of the hearings. The lower court initially rejected the certifications by the board members, not because of the timing of their submission, but because they did not specifically indicate whether the transcripts were read. The board subsequently produced certifications that all absent members had either read the transcripts or listened to audio recordings prior to voting. These certifications were accepted by the lower court and upheld on appeal. The Court also ruled that post hoc certifications are acceptable as long as they are complete and accurate.

The Court also rejected the shopping center owner’s claim that the amended condition in the second resolution was invalid. The condition initially called for a new application for use of the property if changes to the property required additional parking spaces, but was specific to the particular retail store to be built. The lower court remanded the approval to the board to correct the language so that the condition applied to the land and not the landowner. The language of the amended application was acceptable to the lower court. The Court further pointed out that a board has the right and the power to impose conditions to a variance. It found that the conditions imposed by the board satisfied the case law’s five-part test to determine the validity of the conditions. That test requires that conditions must follow the provisions of the zoning ordinance, must not require illegal activity on the part of the requestor, must be in the public interest, must contribute to the purpose of the zoning ordinance, and must not unnecessarily burden the landowner.

Further, the Court rejected the shopping center owner’s argument that the property owner’s failure to pay taxes on the property stripped the board of its jurisdiction over the matter. It upheld the lower court’s dismissal of the matter as a non-issue and refused to hold that a land use board’s jurisdiction is forfeited if real estate taxes are in arrears. The Court pointed out that while state and municipal regulations call for proof that taxes are not overdue or delinquent, there is no mention in either version that unpaid taxes would strip a land use board of its jurisdiction.


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