Justia Zoning, Planning & Land Use Opinion Summaries

At issue in this case before the New Jersey Supreme Court was whether the Township of West Orange improperly designated the site of its public library as an area in need of redevelopment under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. The local Planning Board hired a consulting firm to evaluate the Library. The firm concluded the Library met the statutory conditions. The Board, in turn, adopted that conclusion and recommended the site of the Library be designated an area in need of redevelopment. The Township Council agreed. Plaintiff Kevin Malanga, who lived in West Orange, filed a lawsuit to challenge the designation. The trial court rejected his arguments and dismissed the complaint, and the Appellate Division affirmed. The Supreme Court found the Township’s designation was not supported by substantial evidence in the record: the record did not establish that it suffered from obsolescence, faulty arrangement, or obsolete layout in a way that harmed the welfare of the community. The Township argued that even though the Library actively provided services to the residents of West Orange, it could have better served the public if it had more programming and computers, among other things. "That laudable concept, by itself, does not satisfy the standards in the LRHL." View "Malanga v. West Orange Twp." on Justia Law

Consolidated appeals arose from two actions based on real estate development disputes. Plaintiffs sued their former legal counsel, two real estate developers, and executives employed by the developers, alleging that defendants’ tortious conduct deprived them of the opportunity to construct an affordable housing complex on a property in Monroe Township, New Jersey; a second development was planned for Egg Harbor. Plaintiffs had formed NJ 322, LLC with a developer to build a market-rate rental and commercial development on the property. Plaintiffs contended that defendants arranged to have the property rezoned so that only affordable housing could be built on it, at which time the developer withdrew and Plaintiff had no alternative but to sell the property. Plaintiffs’ damages expert prepared a report that included his opinion on “the profits that would likely have been earned by [p]laintiffs in the event that their development goals and objectives in connection with the development of the Project had not been frustrated” by defendants’ alleged conduct. The expert presented lost profits damages models for the development: the profit plaintiffs would have achieved if the development had proceeded as originally planned, and the profit had plaintiffs been the ones to construct the affordable housing project that was actually built. Based on the new business rule, the trial court granted defendants’ motion to bar testimony by plaintiffs’ expert in both cases. The Appellate Division affirmed in both cases. The New Jersey Supreme Court rejected a per se ban on claims by new businesses for lost profits damages, and it declined to follow Weiss v. Revenue Building & Loan Association, 116 N.J.L. 208 (E. & A. 1936) to the extent that it barred any claim by a new business for such damages. "Claims for lost profits damages are governed by the standard of reasonable certainty and require a fact-sensitive analysis. Because it is substantially more difficult for a new business to establish lost profits damages with reasonable certainty, a trial court should carefully scrutinize a new business’s claim that a defendant’s tortious conduct or breach of contract prevented it from profiting from an enterprise in which it has no experience and should bar that claim unless it can be proven with reasonable certainty." The Court remanded these cases so that the trial court could decide defendants’ motions in accordance with the proper standard. View "Schwartz v. Menas, Esq." on Justia Law

The Township of Manalapan challenged the condemnation award in favor of defendants entered after a jury trial. The issue was whether the trial court erred in admitting testimony that the condemned property’s highest and best use would require a variance without first determining whether there was a reasonable probability the variance would be granted. The New Jersey Supreme Court concluded evidence that risks misleading the jury into assuming a zoning variance for purposes of calculating a property’s value must not be admitted absent a judicial finding it was reasonably probable that the variance will be obtained. Therefore, the trial court erred by allowing the jury to consider testimony that the highest and best use of the subject property would require a variance without first confirming the probability of securing that variance. View "Township of Manalapan v. Gentile" on Justia Law

The ethical mandate in N.J.S.A. 40A:9-22.5(d), prohibiting planning and zoning board members from hearing cases when cases of personal interest "might reasonably be expected to impair [their] objectivity or independence of judgment," was at the heart of this appeal. The Conte family filed an application to develop three lots in the City of Garfield. The issue raised was whether any members of the Garfield Zoning Board of Adjustment had a disqualifying conflict of interest because of the involvement of certain Conte family members in the Zoning Board proceedings. The Piscitellis objected to the development project and claimed that a conflict of interest barred Zoning Board members who were employed or had immediate family members employed by the Board of Education from hearing the application. The Piscitellis also contended that any members who were patients or who had immediate family members who were patients of the Contes also had a disqualifying conflict. No Zoning Board member disqualified himself or herself on conflict-of-interest grounds. The New Jersey Supreme Court reversed and remanded the case for further proceedings, namely for the trial court to make findings of whether any Zoning Board member had a disqualifying conflict of interest in hearing the application for site plan approval and variances in this case. View "Piscitelli v. City of Garfield Zoning Board of Adjustment" on Justia Law

Quaker Valley Farms, LLC (Quaker Valley) owned approximately 120 acres of deed-restricted farmland in Hunterdon County, New Jersey. As part of New Jersey’s Farmland Preservation Program, the State purchased an easement on the property that prohibited any activity on the property that was detrimental to soil conservation, but permitted the construction of new buildings for agricultural purposes. Quaker Valley excavated and leveled twenty acres of the farm previously used for the production of crops, to erect hoop houses (temporary greenhouses) in which it would grow flowers. In the process, Quaker Valley destroyed the land’s prime quality soil. At issue before the New Jersey Supreme Court was whether Quaker Valley’s excavation activities violated its deed of easement and the Agriculture Retention and Development Act (ARDA). The Supreme Court determined Quaker Valley had the right to erect hoop houses, but did not have the authority to permanently damage a wide swath of premier quality soil in doing so. Accordingly, the judgment of the Appellate Division, which overturned the trial court’s grant of summary judgment in favor of the State Agriculture Development Committee, was reversed. “Those who own deed-restricted farmland must have well delineated guidelines that will permit them to make informed decisions about the permissible limits of their activities.” View "New Jersey v. Quaker Valley Farms, LLC" on Justia Law

The issue this case presented for the New Jersey Supreme Court’s review centered on whether a tax lienholder has standing to challenge a planning board’s approval of a land use application for a neighboring property. The Court concluded that, pursuant to N.J.S.A. 40:55D-4, a tax lienholder who can show that its “right to use, acquire or enjoy property is or may be affected” if the application is granted is an interested party, and therefore may have standing to challenge a planning board’s approval of a land use application. View "Cherokee LCP Land, LLC v. City of Linden Planning Board" on Justia Law

Plaintiff Montclair State University (MSU) has attempted to create a third egress from its campus onto a county road. MSU consulted with both the County of Passaic, New Jersey (County) and the City of Clifton (City), ultimately satisfying most of their concerns about the project. When the County failed to respond to MSU’s permit applications, MSU filed this action, seeking a judgment declaring that no permit or local approval was required, or alternatively, an order compelling the County to issue all necessary permits. The trial court denied relief sought. Relying on Rutgers v. Piluso, 60 N.J. 142 (1972), the court reasoned that the parties had to exchange updated traffic studies, consult further, and appear before the local planning boards. Although MSU agreed to make more changes to its plan, the impasse remained. The principal point of contention was the design speed of the campus roadway, which the County and City claimed was unsafe. MSU declined to make the change proposed by the County and the City, relying on its experts’ conclusion that the road’s planned design speed and posted speed would be safe, and that the alternative design was unsafe. The matter returned to the trial court, which dismissed MSU’s complaint because MSU had not returned to the local planning boards to develop the record further. In reversing the trial court, the Appellate Division held MSU enjoyed a limited immunity but that Rutgers controlled here and prohibits MSU from exercising its power in an “unreasonable fashion.” The panel remanded the matter, instructing that the trial court determine whether MSU had adequately and reasonably consulted with the County and City. The New Jersey Supreme Court found that in circumstances such as were presented here, a judicial finding that the cited public safety concern has been reasonably addressed was a necessary additional requirement before a court could either compel local regulatory action or grant declaratory relief that the planned action is exempt from land use regulation. The appellate court did not specify what record warranted such a finding in every case. “Rather, the trial court should determine, on a case-by-case basis, whether it could make such a finding via a summary proceeding or whether a more fulsome proceeding is necessary.” View "Montclair State University v. County of Passaic" on Justia Law

Plaintiff Dunbar Homes, Inc., (Dunbar) owns a 276-unit garden apartment complex in the General Business Zone (GB-Zone) of Franklin Township (Township). Dunbar sought approval to develop an additional fifty-five garden apartments, which at that time were a permitted conditional use in the GB-Zone. As such, construction of the additional apartments required submission of an application for site plan approval and a “conditional use special reasons” variance pursuant to N.J.S.A. 40:55D-70(d)(3) ((d)(3) variance). On May 28, 2013, the Township introduced and scheduled a public hearing for an ordinance that eliminated garden apartments as a permitted conditional use in the GB-Zone. The Township adopted the new ordinance on July 16, 2013, and it became effective on August 5, 2013. Eighteen days before it adopted its new ordinance, the Township advised Dunbar of the potential GB-Zone change. The day before the Township adopted its new ordinance, Dunbar submitted an application to the Planning Board for site plan approval and a (d)(3) variance. Two days after the Township’s new zoning ordinance eliminated garden apartments as a conditional use in the GB-Zone, a Township zoning officer emailed Dunbar to indicate that its application was incomplete under the Township’s Zoning and Subdivision Ordinance (Ordinance). The zoning officer provided a list of items “needed for completeness” and instructed Dunbar it would need to apply for a “restricted use special reasons” variance under N.J.S.A. 40:55D-70(d)(1) ((d)(1) variance) Since a (d)(3) variance need not meet the stringent standards required for a (d)(1) variance, approval of a (d)(1) variance was less likely. Dunbar appealed the Township’s decision to the Zoning Board of Adjustment (Board), arguing that the application was “complete” upon submission and was therefore protected by the TOA Rule. Dunbar filed a complaint, asserting that the Board’s decision was arbitrary and capricious or unreasonable. The trial court agreed and reversed the Board, concluding that “there was enough submitted to functionally begin a review” of Dunbar’s application. Thus, the court found that Dunbar was protected by the TOA Rule and could therefore pursue a (d)(3) variance. The Township appealed the trial court’s decision and the Appellate Division reversed. The New Jersey Supreme Court affirmed the appellate court: "the plain language of the MLUL defines an 'application for development' as 'the application form and all accompanying documents required by ordinance.' Because Dunbar’s application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule." View "DunbarHomes, Inc. v. Zoning Board of Adjustment of Franklin Township" on Justia Law

The issue before the New Jersey Supreme Court in this appeal centered on whether a homeowner, who challenged the issuance of a zoning permit allowing construction on neighboring property, had a statutory right to be heard before the Borough’s Planning Board, and if so, whether the violation of that right gave rise to an action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. In 2009, the Borough of Spring Lake’s then zoning officer issued a zoning permit (First Permit) to Thomas Carter to construct a two-and-a-half-story residence. Plaintiff Mary Harz owned adjoining residential property and brought to the attention of the new Borough zoning officer her concern that Carter’s foundation exceeded the height permitted by the Borough’s zoning ordinance. The Supreme Court found that the Borough’s zoning officer did not adhere to the precise statutory procedures for processing Harz’s appeal, and the Court did not take issue with Harz’s claims that the Borough could have responded in a more efficient way to her objections. In the end, however, Harz could not establish that the Borough denied her the right to be heard before the Planning Board. She therefore could not demonstrate that she was deprived of a substantive right protected by the Civil Rights Act. View "Harz v. Borough of Spring Lake" on Justia Law

In 2010, the Township of Franklin (the Township) adopted an ordinance revising its regulation of signs, including billboards. The ordinance permits billboards, subject to multiple conditions, in a zoning district proximate to an interstate highway but expressly prohibited digital billboards anywhere in the municipality. A company seeking to install a digital billboard challenged the constitutionality of the ordinance. The Law Division declared unconstitutional that portion of the ordinance barring digital billboards. The trial court viewed the Township's treatment of such devices as a total ban on a mode of communication. In a reported opinion, the Appellate Division reversed. Applying the "Central Hudson" commercial speech standard and the "Clark/Ward" time, place, and manner standard to content-neutral regulations affecting speech, the appellate panel determined that the ban on digital billboards passed constitutional muster. The Supreme Court disagreed: "simply invoking aesthetics and public safety to ban a type of sign, without more, does not carry the day." The Court declared the 2010 ban on digital billboards as unconstitutional and reversed the judgment of the Appellate Division. View "E&J Equities v. Board of Adjustment of Franklin Township" on Justia Law