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Garden State Check Cashing Service, Inc. v. Board of Adjustment of the Township of Irvington

A-1615-04T2 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; LAW OF THE CASE—The “law of the case” doctrine is a discretionary rule that is restricted to preventing re-litigation of the same issue in the same suit and has no application where a court sends a zoning application back to the land use board for reconsideration and the board again approves the application.

An individual bought a two-story building. The building owner opened a financial planning and accounting office in a portion of the building and sought to open a check cashing store in another portion of the building. The building abutted a main thoroughfare and was close to a municipal parking lot, street parking, and public transportation. To operate its proposed check cashing business, the building owner required a use variance, and submitted an application to the zoning board. The board approved the application. Thereafter, a competing check cashing establishment opposed to the board’s approval filed a complaint in lieu of prerogative writs, challenging the grant of the use variance. Finding the board’s resolution conclusory, the lower court reversed and remanded the matter for specific findings of fact. Pursuant to the remand order, the board convened a hearing and once again approved the use variance.

The competing check cashing establishment once again appealed to the Law Division by filing an action in lieu of prerogative writs. This time, it affirmed the board’s grant of the use variance and dismissed the check cashing establishment’s complaint. The lower court noted that it’s review authority was limited to the issue of what the board concluded and in doing so, it found that the board had sufficiently made all the findings necessary to support its conclusions that the variance could be granted.

On appeal, the Appellate Division first noted its limited scope of review in cases of this nature, ordinarily acceding to zoning and planning determinations made by local boards. Thus, the Court stated, a decision of a municipal zoning board is presumptively valid. Decisions will be set aside only if it is arbitrary, capricious or unreasonable.

The Court then explained that a zoning board may grant a use variance when an applicant satisfies both positive and negative criteria. The positive criteria require an applicant to establish special reasons for the grant of the variance. The term “special reasons” has been broadly defined as those criteria that promote the purposes of zoning with the promotion of the general welfare being the zoning purpose which most clearly amplifies the meaning of special reasons. Conversely, the negative criteria require that the variance sought not be inconsistent with the intent and purpose of the master plan and zoning ordinance.

The Court found that the evidence satisfied both the requisite positive and negative criteria.

Despite sufficient support in the record for the grant of a use variance, the competing check cashing establishment nevertheless argued that the lower court was bound by the earlier decision under the “law of the case” doctrine. However, the Appellate Division explained the “law of the case” doctrine is a discretionary rule that is restricted to preventing re-litigation of the same issue in the same suit. Notwithstanding its discretionary nature, the Court found that the “law of the case” had no application in this case.

Having agreed with the reasoning of the lower court, the Appellate Division affirmed the lower court’s decision.

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