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Fieramosca v. Barnegat Township Zoning Board of Adjustment

A-2437-08T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; TIDELANDS — Even if a land use applicant may be subject to an unresolved tidelands claim, a land use board may still grant approvals provided such approvals are conditioned upon submission of proof that the applicant actually owns the questionable tideland property.

A developer’s purchase of waterfront property was conditioned upon the receipt of a certificate of occupancy. The zoning board approved the developer’s plan to demolish the existing structures on the property and to permit a new structure to be built. The applicant needed a considerable number of bulk variances and waivers. To eliminate the need for many of the bulk variances, the applicant attempted to purchase neighboring property. The neighbor s would not sell. The applicant also obtained an “unofficial” determination from the New Jersey Bureau of Tidelands Management that the State had no interest in the subject property, but did not receive a more formal determination as of the date the zoning board considered its application. The board approved the variance request, but granted its approval subject to the fulfillment of a number of conditions, including a requirement that the applicant obtain “a Statement of No Interest” from the Tidelands Commission to permit the property’s use as presented on its plans. All approvals were specifically contingent upon the applicant’s demonstration of full ownership of the land. The neighbors who refused to sell their property challenged the board’s ruling.

The Law Division affirmed the board’s decision, concluding that the board based its approval decision on competent and substantial evidence and that its actions were not arbitrary, capricious or unreasonable. The neighbors appealed claiming among other things that the Department of Environmental Protection (DEP) could have jurisdiction over the matter if the tidelands were ultimately determined to be owned by the Tidelands Commission.

The Appellate Division affirmed. In doing so, the Court rejected the contention that the applicant did not have an enforceable proprietary interest in the property. Even though the tidelands claim was unresolved, the board had conditioned its approval upon the submission of proof that the applicant’s owned the property. It noted that the lower court stated that if the applicant obtained a “Statement of No Interest” from the Tidelands Commission, it would be the owner of the property. Therefore, none of the use variance conditions would impact matters within the jurisdiction of the DEP because the government would not have an ownership interest. Conversely, the Court ruled that if the applicant did not obtain a “Statement of No Interest,” it would not be able to continue its plans. Moreover, the neighbor’s contention that the contract purchaser lacked an enforceable proprietary interest because it did not yet own the property was rejected; the developer’s interest as “contract purchaser” was deemed to give it a sufficient interest in the property to apply for a variance.

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