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Hackensack Warehouse, LLC v. City of Hackensack Zoning Board of Adjustment

2005 WL 1460166 (N.J. Super. Law Div. 2005) (Unpublished)

ZONING; APPLICATIONS —A land use board is entitled to examine the entire history of an applicant’s use of its property, including illegal use from time to time, but any such illegal use does not bar an applicant from prosecuting a variance application to legitimize such use.

In 2001, a public self-storage warehouse made an application to the zoning board for a use variance to permit part of its premises to be used for residential purposes. The variance was denied, but the property owner continued to allow its security guards to occupy a small area of the second floor of the warehouse where a kitchen, a bathroom and sleeping quarters were located. In 2004, when it was cited for violation of the zoning ordinance, it applied again for a variance seeking an “office, cafeteria and sleeping quarters” for its security personnel. At the public hearing that followed, the warehouse’s attorney told the board that “there are no plans to live there, but to have a place for [security guards] to stay because this warehouse has a maze of corridors and a lot of self-storage.” The board barely allowed any witnesses for the warehouse to testify, even severely truncating testimony one of the warehouse’s owners by the constant interpretation from board members. In addition, the board took testimony in the form of “unsworn factual statements” from the municipality’s code official. It appeared that the board was angry because the warehouse continually used a portion of its space for this residential type purpose even though it was denied a variance in 2001. The board did not permit any member of the audience to participate. Essentially, it dismissed the application as “a duplication of an application that was [previously] before the board.” When the matter reached the Law Division, that Court first noted its obligation to grant deference to the ruling of a zoning board unless it was clear that the ruling was arbitrary, capricious or unreasonable. According to the Court, this presumption springs from the optimistic notion that those in government generally act within the powers granted to them and do so properly. “As fiduciaries carrying out the will of the people, it would be unthinkable to assume that governmental actors will not follow the law. Life experience, however, teaches that public officials occasionally misstep and then it falls to the judiciary to redress the public interest.” With that as background, the Court found that some of the board members “were apparently vexed by the prior conduct of [the applicant] following the Board’s denial of the use variance in 2001.” Nonetheless, it appeared to the Court that “the Board conducted itself almost as a prosecutorial agency in aid of the building inspector.” It held that “[t]his [was] not a proper role for a board of adjustment.” Here, “the Board intruded into the enforcement sphere of authority of the governing body when it lost sight of its singular role to consider [the applicant’s] development application. Although the Board was entitled to examine the entire history of [the applicant’s] use of its property, including the illegal use from time to time, such illegal use [did] not conclusively bar the relief sought by [the applicant] in the instant application. The Board was required to listen to all of the evidence, including any evidence that interested parties from the public sought to present, with patience. Its precipitous dismissal before allowing the [the applicant] to supplement the record, without allowing [the applicant’s] engineer to testify, without administering an oath to [the code enforcement official] who provided factual information upon which the Board relied, without marking exhibits, including those prepared by [the applicant] and those constituting the record from the 2001 application, with identification designations, and without allowing public participation was erroneous and constituted an abuse of discretion bespeaking arbitrary, capricious, and unreasonable conduct. ... It abused its discretion in its sprint to reject the application.” Further, the Board was not acting properly when it rejected the new application as a duplication of the old one because it did not have a sufficient record before it to do so. None of the prior proceedings had been entered as evidence. While the Court recognized that the board might ultimately decide that the application was barred by res judicata, it held that the applicant was deprived of its right to try to convince the board that the doctrine did not apply. As a result of all of the foregoing, the Court reversed the board’s determination and remanded the matter for an entirely new matter.

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