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Cuevas v. Zoning Board of Adjustment of the Township of Holmdel

A-2440-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — Even though an objector did not intervene in litigation over a variance denial that resulted in a remand to the land use board, when that objector sues to set aside the board’s subsequent and second resolution that results in approval of the variance, the objector is not limited to issues raised before the land use board after the remand and may raise issues arising out of the board’s initial, pre-remand hearings.

A wireless company sought to construct a new telecommunications facility by appending nine panel antennas to an existing water tank located in a residential zoning district. The company applied for variances and for site plan approval with the governing municipality. Public hearings were held. The tank was heavily screened by mature vegetation, and the height of the tank would not be increased by the antennas. Scheduled service was anticipated only about once a month during the day. Although wireless telecommunications antennas and towers were permitted uses within the municipality, residential districts were not included in a listing of sequential preferences for the location of new facilities under the municipal ordinance. Therefore, the applicant needed a d(3) conditional use variance. The zoning board considered whether an alternative site was suitable for this construction, and heard testimony that one particular site would be explored for suitability in the future. The board denied the variance. Its resolution focused on the insufficiency of evidence regarding the alternative location’s suitability, and concluded the wireless company failed to satisfy the statutory positive and negative criteria required for a variance.

The wireless company filed suit, challenging the board’s denial. The company advised the court that it had evidence that the alternative location was indeed not available. The lower court remanded the matter to the board for a limited hearing on that site’s availability. This time, the board found the company had proven the unavailability of the alternative site and approved the company’s application. The second resolution adopted by the board (granting the application) indicated the other site was not available, and the company proved the positive and negative criteria required for a “d” variance. The resolution was published, and the wireless company dismissed its litigation with prejudice.

Within forty-five days after publication of the second resolution, a resident filed suit challenging the grant of the company’s application. The lower court ruled that the resident’s claims would be limited to board actions taken after the court’s remand, and that the resident should have intervened in the wireless company’s litigation if it had wished to challenge the board’s first resolution. It held that the resident was out of time and was barred from challenging “the variances granted pursuant to the first application.” After trial, the lower court upheld approval of the company’s application and dismissed the resident’s complaint.

On appeal, the Appellate Division held the lower court erred in limiting its review of the board’s decision because the board had not granted any variances by its first resolution. Only the second resolution contained findings and conclusions granting a “d(3)” variance, and the resident filed a timely cause of action challenging the second resolution. The Court disagreed that the resident had to intervene in the wireless company’s litigation in order to rely or refer to any part of the board’s complete record in the matter; as the board had denied the wireless company’s application under the first resolution, the resident’s interest was adequately covered by the litigating parties. Only when the board granted the variance and approved the application under the second resolution did the resident’s interest require action. Thus, the resident timely made its objections to that resolution by filing suit.

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