In a recent unpublished decision from the Appellate Division, the court reversed the granting of a zoning variance and remanded the matter back to the local zoning board. A Morristown homeowner sought, and received, approval from the zoning board to convert a two-family residence into a three-family residence. However, the township's approval was conditioned on the property being occupied by the owner. On appeal, this residence condition was overturned with the court stating that, "a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies the land," and, "conditions which make a variance personal to the property owner are invalid." Since the record reflected that many of the members of the board based their approval votes on the fact that the property would remain owner-occupied, the Appellate Division remanded the matter back to the local zoning board for a rehearing and new vote now that the residence requirement was determined to be impermissible. (Kiehn v. Mongey, et. al.)
In a matter of first impression due to statutory amendments addressing certain issues relating to the continued re-building after Superstorm Sandy, an owner of a townhome in Margate was permitted to raise their home to meet new flood standards despite a deed restriction limiting the height of the structure. The townhome development consisted of one row of ten attached two-story oceanfront townhomes, and a second row of ten attached three-story townhomes located directly behind the first row. The expressed purpose of this configuration was to give both rows of townhomes an ocean view. Although the townhomes shared party walls that extended down into the foundation, each was situated on its own subdivided lot, was owned in fee simple. After the home in question was destroyed by Superstorm Sandy, the owner sought to elevate the unit thirteen feet in order to meet the new flood-protection standards, negatively affecting the ocean view of the second row of townhomes. Despite a deed restriction limiting the height of the owners townhome, the Appellate Division found that it could be built at the new height. Relying on the legislature's amending of N.J.S.A. 58:16A-103, the court held that he was entitled to, "elevate the structure as required by current flood-safety standards, despite Declaration provisions that would otherwise preclude him from doing so. As intended by the Legislature, the amended statute overrides the Declaration and any local development regulations that might otherwise prevent Iannuzzi from elevating the townhome." Furthermore, the court clarified that the structure could be rebuilt to the same total height, even at its new elevation stating that, "Iannuzzi's right to protect his property from flood hazards outweighs his neighbors' right to preserve their ocean views." (Gross, et. al. v. Iannuzzi, et. al.)
In 1994 the Borough of Haledon approved a variance for the operation of a car wash located on a gas station property. The variance contained certain conditions that required certain aspects of the car wash business to be run out of the gas station. Over the years, the car wash was sold separately from the gas station, which ended the common ownership of the two businesses. The car wash was actually sold three different times, with each new owner receiving a certificate of occupancy from the Borough. However, when the latest owner sought a certificate of compliance as part of the process to sell the business to a fourth owner, the Borough denied the application for failure to comply with the conditions of the 1994 variance. The owner argued that the conditions could no longer be complied with due to the lack of common ownership of the car wash and gas station, and that the Borough never sought to enforce the twenty-year-old conditions. However, the Borough disagreed as did the trial court. In a recent unpublished decision, the two-judge panel affirmed the Borough's decision and held that despite the Borough's non-enforcement of the variance conditions for almost twenty years, and despite the fact that multiple prior certificates of occupancy had been issued to car wash owners during that time, the variance conditions were enforceable as such conditions run with the land as part of the variance and there was no action by the Borough amounting to a permanent waiver of enforcement. (Belmont Car Wash LLC v. Planning and Zoning Board of the Borough of Haledon)
The approval of a 100+ room hotel in Lakewood was set aside by the Appellate Division for material deficiencies in the contents of the public notice, forcing the developer to re-start the approval process from scratch. The public notice of the application indicated that the plan was, "to construct a hotel as well as a bank," but omitted that the hotel was going to include a restaurant, bar and banquet facilities. The trial judge did not take issue with the contents of the notice, and found them to be "common amenities" for a hotel. However, the Appellate Division disagreed and remarked that, "[a] facility that is expected to be serving alcohol, and thereby inviting patrons who will drive to the location in order to consume intoxicating liquors, presents concerns of traffic and public safety that would reasonably be of concern to surrounding residents and property owners." Consequently, the appellate panel found the notice to be materially deficient and the approval granted by the Township was set aside. (Lakewood Realty Associates v. Lakewood Township Planning Board, et. al.)
In an unpublished decision released on February 4th, the Appellate Division cautioned that municipal officials who also sit on boards of the same municipality should minimize any ex parte communications with potential applicants before their board, and be careful not to discuss the merits of any potential application ex parte. Here, the court remanded the case to the trial level for further testimony regarding the nature and extent of the conversations at issue, but proclaimed that they, "cannot overstate how essential it is to the integrity of local governments that public officials who serve on municipal boards abstain from ex parte communications pertaining to matters before them and insulate themselves from any outside influences." (Lars Sternas v. DMH2, LLC, et. al.)
In an unpublished decision issued on January 31st, the Appellate Division upheld a determination by the Middle Township Planning Board that the square footage inside a proposed Starbucks that was devoted to customer seating was properly excluded from the calculation of the required number of parking spaces for the site. At issue was a local ordinance requiring one parking space for each fifty square feet of gross floor area that was, "devoted to customer service," while also requiring one parking space for every four seats in the establishment. Starbucks successfully argued that requirement of one space per every four seats already addressed the parking needs for the square footage devoted to seating areas, and that to include the square footage of the seating area in determining the square footage "devoted to customer service" would be "double dipping". This interpretation was important as the plan submitted by Starbucks only included twenty-six parking spaces, much less than the required forty-one spaces that would have been required had they not been successful. However, the Appellate Division upheld the determination of the trial court, and affirmed that only eighteen spaces were required by ordinance and therefore no parking variance was necessary. (Delco, LLC v. Middle Township Planning Board, et. al.)
Peter J. Vazquez, Jr.