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Joel Tanis & Sons, Inc. v. Zoning Board of Adjustment of the Borough of Fair Lawn

A-6212-02T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; SETTLEMENTS—Even if a court is in the process of adjudicating a land use dispute, the applicant and a land use board can enter into a settlement of the dispute that calls for hearings before the board and no formal remand from the court to the board is required to do so.

A school bus company applied to a local board of adjustment for a use variance and site plan approval for a proposed school bus parking and maintenance facility on its own property. An adjacent property owner opposed the application, claiming that the planned facility would interfere with the operations of a cement plant it ran on its property and with ingress and egress for the cement plant’s trucks. The board rejected the application and the bus company appealed to the Law Division. However, while the case was pending, the board and the bus company entered into a settlement agreement, which the lower court then approved.

The neighboring cement company sued, challenging the settlement. It argued that the lower court lacked jurisdiction to approve it. The Appellate Division disagreed, holding that there was no statutory requirement that a trial court remand a case to a local land use agency before the agency may consider a proposed settlement of an action in lieu of prerogative writ. The bus company and the board informed the lower court that they had tentatively agreed upon a proposed settlement and that the board would conduct additional proceedings to obtain public comment and to determine whether to approve the proposal. With the lower court’s approval, without a formal remand, the board conducted a further hearing at which the bus company was required to present evidence regarding the proposed changes in its application. The opposing cement company was given a change to cross-examine the bus company’s witnesses and present its own expert witnesses. The lower court then properly reviewed the board’s resolution and approved it. The cement company’s right to judicial review was preserved by its right to bring an action to the Appellate Division. Therefore, the Appellate Division upheld the lower court’s approval of the settlement between the bus company and the board.

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