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Township Council of the Township of Marlboro v. Marlboro Township Zoning Board of Adjustment

A-4193-05T5 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; APPEALS; STANDING — A municipality has no standing to challenge a land use board’s decision unless the decision is at such great odds with the applicable zoning scheme as to constitute an arrogation of the municipality’s zoning authority.

A municipality sued its zoning board challenging a grant of use variance and site plan approval for a residential housing complex to be built on seven acres. The complex filed for, and received, a use variance to build in a commercially zoned area. Several months later, the municipality passed an ordinance barring rezoning of commercially zoned property for residential use unless the residential use was for low-income housing. The complex received its use variances and closed on the property. It then proceeded to acquire building approvals. The board moved to dismiss the complaint on grounds of timeliness and standing.

The lower court granted the board’s motions to dismiss, finding that there were no reasons to create an extension for the forty-five day filing requirement for the municipality’s complaint. There was a seven month delay from the time of the board’s granting of the ordinance and the date of filing the complaint. The municipality argued for the date to run from the time of the site plan approval, which would have put the municipality within the forty-five day requirement. The lower court disagreed because to find for the municipality would undermine one of the primary purposes of the approvals procedure, which is to allow developers to move forward with the project.

The lower court also found that there were no unexpected aspects of the application for the use variance, and ruled that the municipality should have been on notice once the use variance was granted. A representative of the municipality was even in attendance during at least one zoning board meeting where the issue was discussed. Neither did the complex’s application appear to be rushed through to approval

The lower court also found that there was no public interest in extending the statutory filing limit, as the property at issue was only seven acres in area. Also, neighboring home owners had approved the application, and it was found that the complex would have little traffic impact and would yield greater tax benefits for the municipality. Thus, there would not be offense to public interest.

In the appeal that followed, the Court found that the municipality had no standing to challenge the board’s decision unless the decision was so at odds with the applicable zoning scheme as to constitute an arrogation of the municipality’s zoning authority. In assessing this, the Court looked at several factors including the size of the tract itself, the relationship of the tract’s size to the size and character of the district within which it was located, and whether recent rezoning had taken place. The Court found that the tract where the complex was to be was only seven acres, and it was very close to similar housing complexes. Also, very little of the complex would be facing the disputed zoning area; most of it would face residential areas. The Court also found that there was no evidence in the record to demonstrate that there was an abrogation of the municipality’s zoning power. Thus, the Court affirmed the lower court’s finding for summary judgment for timeliness and standing.

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