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Lamart Corporation v. Mayor and Municipal Council of the City of Clifton

A-1883-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; GOVERNING BODIES—Although a municipality’s governing body can hear appeals of a zoning board’s grant of a use variance, it must base its decision on credible testimony and cannot act out of “passion.”

A manufacturing company had been using “off-site warehousing for its products, resulting in extensive truck and forklift traffic on the surrounding streets.” Its plant was located in a zone that permitted manufacturing. It sought to build a connecting warehouse on four adjacent residential lots. Those lots had been previously cleared. They were adjacent to the manufacturing plant itself. A recycling plant was located directly across the street. Further, they were bordered by a parking lot and a pub. An earlier application to build a much larger building had been rejected because of “the size of the building” and its “closeness” to the adjacent properties. The manufacturing company filed for a use variance, seeking to build a substantially smaller addition. At the hearing before the zoning board, the applicant’s expert testified at length, pointing out significant modifications to the first application and outlining how the new application satisfied the positive and negative criteria. The applicant also produced testimony that addition of the warehouse would alleviate existing traffic and noise conditions. No contradictory evidence was adduced by objectors. No expert opinions were offered in opposition.

The zoning board approved the application, but imposed six stipulations. Those stipulations restricted the use of the street for loading, required that the warehouse only be used in connection with the manufacturing plant, called for a buffer zone and an approved lighting plan, and restricted the time for deliveries. “The resolution also specifically noted that the two new loading docks ‘will alleviate the existing condition of trucks overhanging the street bed and interfering with traffic flow which would help promote the health, safety, and general welfare of the neighborhood.’”

The adjacent owner of residential property and the parking lot filed an appeal with the governing body. At a de novo hearing, the governing body heard the arguments, especially that “the Board had usurped the legislative function of the governing body by taking action tantamount to amending [the master plan],” and reversed the grant of the use and bulk variances. The governing board’s resolution rejected the applicant’s testimony and conclusions as “not credible.” In response, the applicant filed an action in lieu of prerogative writs. The lower court found that the applicant “had demonstrated the positive criteria or ‘special reasons’ for the grant of the use variance and had also satisfied the negative criteria.” The lower court also found that the governing body’s findings and conclusions were not supported by the record. It held that the stipulations attached to the grant had already taken into consideration the objector’s concerns “stating that those concerns ‘were not so much [concerns about the] impact on the residential area’ as they were concerns about traffic and noise.” Here, the lower court found sufficient evidence that traffic and noise would be significantly alleviated by construction of the warehouse. Essentially, the lower court determined “that the governing body had acted ‘out of passion rather than reasoned analysis of the record.’” It felt that the objector’s attorney had done a “masterful job of convincing the majority of the Mayor and Council to ‘send a message’ to the Board that the Board cannot rewrite the ordinance.” Lastly, the lower court rejected the applicant’s argument that one of the members of the council had a direct conflict of interest “simply because she had been defended by the objector’s attorney in a municipal court traffic violation case ten years earlier.”

On further, appeal, the Appellate Division set forth the standards for reviewing a governing body’s decision, pointing out that such review is ordinarily limited. A court must give a governing body the presumption of validity and defer to its judgment and its knowledge of local conditions. On the other hand, a court can reject a governing board’s decision if an abuse of discretion can be shown. In addition, governing boards, like zoning boards, “may accept or reject the testimony of any witness, including an expert witness, [but] the determination to reject that evidence must be ‘reasonably made.’” After reviewing the record, the Appellate Division held with the lower court and the zoning board. It found that the board did not “blatantly arrogate the itself the power to re-zone the property or substitute its idea of an appropriate zone plan… .” Further, the applicant’s expert had not offered an opinion as to where the zone boundary line should be placed, he merely stated that the irregular shape of the line “may have come into existence to accommodate the old pre-existing uses.” The applicant’s expert did not advance an opinion that the ordinance should be changed, only that the applicant had satisfied the positive and negative criteria.

Further, the governing body cannot simply reject evidence as “not credible,” where there is no contradictory evidence. Lastly, the Appellate Division agreed with the lower court that there was no conflict of interest.


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