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Lester M. Entin Associates v. Town of Harrison

A-4011-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — A land use board cannot substitute its judgment for the proprietary of a use permitted in the zone or deny approval based on interior features of a structure if not addressed in the local ordinance or redevelopment plan.

A municipal planning board approved three individual applications for development of three separate properties within a redevelopment zone, including for a sports stadium. The board held that the benefits derived from the proposed deviations from the redevelopment plan substantially outweighed the detriments and advanced the purposes of the redevelopment plan and promoted public safety. A neighbor owning property immediately adjacent to the redevelopment zone challenged the board’s decisions in one consolidated action, claiming that the board failed to adequately consider the neighbor’s expert testimony relating to the propriety of the permitted use and inadequately addressed safety concerns.

The lower court dismissed the neighbor’s complaint. It ruled that the board could not substitute its judgment for the propriety of a use permitted in the zone or deny approval based on design features of the interior of the stadium not addressed in the local ordinance or redevelopment plan. It therefore rejected the neighbor’s assertion that the board had arbitrarily approved the applications without considering the reports of the neighbor’s experts. The lower court further observed that the board’s findings and the conditions imposed by the board reflected consideration of, and addressed the matters of, “safe and efficient functioning of the facility” raised by the neighbor’s experts.

The Appellate Division affirmed for substantially the same reasons stated by the lower court. Further, it rejected the neighbor’s contention that the lower court erred by failing to adequately consider the matters in light of a decision that it had recently decided, Harrison Redevelopment Agency v. DeRose. It held that the Court’s decision in DeRose had no legal relevance to the development applications.


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