Case Law Summaries

Scully-Bozarth Post #1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington

• Opinion Date: July 21, 2003
• Real Property Law
• E-Mail

ZONING; VARIANCES; PROCEDURE—There is no mandatory two-step procedure for adopting and then memorializing a land use resolution and it is not necessary for each board member to acknowledge on the record that he or she read, understood, and agreed with the memorialization so long as there is an indication that he or she participated in the related deliberations.

A veterans organization sought “to expand a pre-existing nonconforming use by placing a surplus army tank on the property containing its gathering hall.” The property was in a residential zoning district and in the municipality’s historic district. The tank was to be a permanent memorial to veterans of the armed forces. The existing building was a rather tall one, on land measuring about 1.6 acres. Because its use predated the municipal zoning ordinance, it enjoyed the status of a pre-existing nonconforming use. The property was bordered by a river and between the property and the river was a street and a public promenade. The memorial was to be located in front of the gathering hall, facing the river. There were several other nonconforming uses within the immediate area.

Originally, the planning board approved the tank’s placement as part of a minor site plan approval, considering it to be an accessory use. A lower court found that the tank memorial was not an accessory use. The applicant appealed and the tank remained in place. In that earlier appeal, the Court “determined that installation of the tank memorial constituted an expansion of a nonconforming use and required a use variance.” It permitted the tank to remain pending further proceedings. Additional hearings were held before the zoning board. The board considered the transcribed testimony and other evidence from the earlier hearings. It also viewed video tapes of the property and the board members had the opportunity to see the tank in its position. It considered the neighboring property owners’ arguments that the “Circa-1970 tank by its nature, was not appropriate in this historic eighteenth and nineteenth century setting.” The neighbors did not argue about the inappropriateness of maintaining a memorial, just that the actual memorial should confirm to the historic characteristics of the neighborhood. As objector’s expert opined that by its nature, the visual impact of a tank could not be minimal.

The applicant presented its own expert who testified that the applicant met the “special reasons” criteria because “the tank memorial [was] inherently beneficial and because the [] site [was] predictably suited for the memorial.” The veterans organization was chartered by Congress for “fraternal, patriotic, historical and educational” purposes. According to the applicant’s expert, “[b]ecause the tank memorial would advance those purposes, [] it is inherently beneficial.” When the board finally voted, four members were in favor and three against. Because a use variance requires at least five affirmative votes, the variance application was denied. The board’s attorney prepared a memorializing resolution without first consulting the board. Before the next meeting, the three members who had voted to deny the application reviewed the resolution and voted to approve the application without any further discussion taking place.

Litigation ensued and the lower court “found that the absence of a discussion, debate and deliberation by the Board members before voting on the variance application” constituted a fatal defect in the Board’s proceedings. The lower court felt compelled to analyze the evidence, rather than order a remand. It concluded that the tank on the property promoted the public morals and welfare, “while impacting with minimal, rather than substantial detriment to the Historic District and the neighborhood generally.” Consequently, it ordered the board to grant the use variance.

The Appellate Division analyzed the procedural issues and rejected the applicant’s argument that New Jersey statute mandates a two-step procedure. The applicant had been arguing that “each member of the municipal agency must verbally express his or her finding of facts and conclusions, and that the members must discuss and debate the matter.” In other words, they must deliberate. According to the applicant, all of this must be done in the course of a public meeting. The second step, according to the applicant, is for the agency’s attorney to prepare a resolution reciting those findings and conclusions. The lower court agreed with that argument, but the Appellate Division did not. Instead, the Appellate Division felt that it is the “resolution that ‘provides’ the required finding of facts and conclusions. There is no mandatory two-step procedure.” The Court pointed out that it was not suggesting that discussion among board members is inappropriate. In fact, it believed that such discussion is beneficial. Nonetheless, it is the resolution that “provides the body’s findings and conclusions, expressed by those who vote to adopt the resolution.” Applied to the case in hand, the only legitimate question was whether the three members who voted to adopt the resolution had ample opportunity to study the draft during their meeting that evening. Even though they did not acknowledge on the record that they read it, understood it, and agreed with it as drafted, those three members participated in a full discussion of the matter at a later meeting “and expressed their reasons for voting against the variance.” As a result, the Appellate Division concluded that the resolution was properly adopted and the lower court erred by taking the case away from the board and deciding it for itself. “The resolution must rise or fall on its merits.”

On the merits, the Court believed that the facts were not complicated because “[t]he tank [was] there for all to see, in its proposed location, in relation to the surrounding neighborhood.” The Court was satisfied that the board properly balanced the factors and could not say “that the decision of the three members opposed to the variance, as expressed in the resolution, was unsupported by the record or was in any way arbitrary, capricious or unreasonable.” It would not substitute its own judgment for that of the board members.

Copyright ©2003. Meislik & Meislik. All rights reserved.