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DeMaria v. Jeb Brook, LLC

MON-L-5783-02, 2003 WL 23744600 (N.J. Super. Law Div. 2004)

ZONING; PROCEDURE—Failure to swear in board witnesses or objectors is not a fatal flaw in a land use proceeding where the applicant’s witnesses are sworn in and they present a case that requires the board to grant approval and the unsworn testimony does not controvert the sworn testimony.

A developer applied for site plan approval to the local planning board. Its plan did not require any variances or waivers, but the development was out of character with the neighborhood. Many objectors attended the board’s hearings and complained about the height of the proposed buildings and about the expected traffic. During the proceedings, the board failed to swear in its consulting engineer, its planner, and objectors. Also, the manner in which the objectors were allowed to participate varied between two hearings because two different board members presided over them. At the end of the process, the board granted site plan approval. The objectors challenged the board’s decision.

On appeal, the Court asked whether the site plan approval should stand where the board had committed significant procedural and substantive errors. Admittedly, there were violations of the Municipal Land and Use Law (MLUL), but the applicant was blameless and complied with all applicable ordinances. Based on the ad hoc rule-making and procedural changes that had occurred, the objectors expressed serious doubts about the board’s impartiality. In response, the Court rejected the objector’s assertion that some of them were denied an opportunity to be heard. The Court found that the record showed that the board had allowed “very significant time” for comment and cross-examination by the objectors. On the other hand, the Court found that the planning board mistakenly treated the objectors as one large mass without properly recognizing their individual concerns. Planning boards should be most interested in hearing from objectors who will be most impacted. Therefore, the Court felt it needed to decide whether the objectors were denied due process based on how the board treated their testimony.

After looking at the underlying facts, the Court found that the board had little reason to deny the site plan application because the application satisfied all relevant ordinances. Under relevant case law, the board couldn’t have denied the application because the permitted use was, in fact, appropriate for the neighborhood or the property. The off-site considerations were irrelevant. When an application conforms to the relevant ordinances, a board can only use its powers of persuasion with a developer to achieve the best development plan; it cannot deny the application. For this reason, the Court concluded that the approval would stand. It noted that all of the developer’s witnesses had been sworn in and that the developer showed that there were no deviations between its plans and the relevant ordinances. Furthermore, the board’s witnesses, who were not sworn in, only corroborated what was already known about the application’s compliance with the ordinances. Thus, although the board did not follow the MLUL, it had, in fact, taken note of the objectors’ concerns and directed the developer to address them.

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