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Berk & Berk At Hunters Glen, LLC v. Township of Delran

A-1309-04T1, A-1310-04T1 and A-1312-04T1 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; APPEALS; STANDING — A municipality only has standing to assert a claim against its own land use board where there is an arrogation of authority by the land use board.

Several municipal bodies appealed from a decision of its zoning board granting a use variance to the owners of a multi-unit apartment complex.

The property was developed several decades earlier, when the area was zoned to permit projects with over 1,000 apartment units. The area was later re-zoned to restrict further residential development, making the existing units non-conforming. Years after the re-zoning, a fire destroyed some of the apartment units, and the owner applied for a variance to rebuild the apartments. After the owners’ request was initially denied by the zoning board, the owner reduced its requested number of apartments. After this adjustment, the zoning board granted the variance.

The municipality’s council subsequently adopted an ordinance permitting the council to appeal variance grants granted by the zoning board. It also passed a resolution in support of the ordinance. The owners brought suit challenging the ordinance.

The lower court found that the variance did not constitute an arrogation by the zoning board’s zoning authority, as the council had claimed. It also found that the ordinance had not become effective until after the time for appeal of the variance had passed. Thus, the lower court permitted the owners to keep the issued variance.

On appeal, the Appellate Division addressed the propriety of the lower court’s decision to allow the owners to file a complaint, challenging the ordinance beyond the statue of limitations period. The lower court found that the issue touched on a matter of public importance, was novel, and was filed with reasonable promptness after the issue became clear. In the end, however, the Court found that, under all of the circumstances, the lower court properly enlarged the time period for challenging the ordinance.

The Court then addressed the validity of the resolution advancing the effective date of the ordinance on the basis of an “emergency.” The lower court noted that there was no clear definition for this use of the term “emergency” in case law. The lower court also had ruled that the approval for the new units did not constitute an emergency, even if the municipality had passed the ordinance barring apartments on the property. The Court agreed, finding that nothing in the situation was unexpected, and held that the ordinance did not call for immediate application to the disputed situation.

The Court also agreed that the municipality did not have standing to assert its claim against the zoning board. Such standing exists only where there is an arrogation of authority, but here the Court found no evidence of such an arrogation. The Court disagreed with the municipality’s claim of standing, rejecting the municipality’s argument that the variance was such a substantial alteration of the character of the district.

The Court then addressed whether the lower court properly affirmed the zoning board’s grant of the variance to the owners. In this regard, the lower court had found that the record demonstrated that the zoning board weighed both positive and negative criteria in making its decision. The lower court also noted that there were already over 1,000 apartments on the property, making the additional 74 units not truly detrimental to the zoning plan. The Court agreed with the lower court’s analysis and decision and permitted the variance to stand.


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