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In Re Hartz/Damascus Bakery, Inc.

404 N.J. Super. 49, 960 A.2d 747 (App. Div. 2008)

ZONING; REGIONAL COMMISSIONS — When an application does not require a variance, approval by a regional commission is only administrative and ministerial and the commission’s staff may process the application without the need for a plenary hearing by the commission.

A municipality appealed a regional commission’s grant of a zoning certificate that allowed a bakery to retrofit an existing warehouse for use as a wholesale bakery. The building was located within a strip of light industrial, warehouse, large commercial, and business facilities. The building was within the regional commission’s Light Industrial A zone. The proposed bakery bordered a residential neighborhood and a public school. The bakery proposed to make site plan improvements as well as interior alterations to the existing building in order to retrofit it. The regional commission gave written notice of the bakery’s application to the mayor of the municipality, as well as to the mayors and councils of the surrounding eight counties. The notice letter described the proposed change in use and included a full, unedited copy of the bakery’s application. The notice letter also provided that anyone with objections to the granting of the zoning certificate should contact the commission within ten days after receipt of the notice.

The municipality did not object to the application within the ten-day period. When the commission requested additional information about the bakery’s application, it copied the municipality on this request. This is when the municipality first raised concerns about the site’s proximity to a residential neighborhood and school, and questioned the proposed work hours and noise levels at the site. In response, the commission requested the information from the bakery, which then provided it. After receiving all pertinent information, the commission found that the bakery’s application met the applicable standards and issued a zoning certificate. The certificate required the bakery to apply for local building permits in connection with its work.

Two weeks after the approval, the municipality raised an objection to the zoning certificate and requested a meeting with a commission. The commission declined because it had already found that the bakery met all applicable standards for a zoning certificate. The municipality appealed, arguing that the commission’s decision was arbitrary and capricious because it had not required a variance in connection with the change in use. It also argued that the commission improperly delegated its quasi-judicial decision making authority to its staff when it should have had a plenary hearing.

The Appellate Division rejected the municipality’s arguments. The Court found that when an application does not require a variance, approval is only administrative and ministerial by the commission staff without the need for a plenary hearing of the commission. However, if an application proposes deviations from existing standards that would require a variance, the commission then would be required to conduct a plenary hearing because the issuance of a variance is a quasi-judicial function that cannot be left to the commission staff to approve. In this case, the Court found that the bakery’s application did not require a variance because its application did not involve changing from a permitted use to a non-permitted use. Since the bakery’s proposed use change was to another permitted use, only a zoning certificate was required. Further, no variance was required because the alterations proposed by the bakery did not expand any prior legal non-conforming aspects of the property.

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