Here are some pictures I took of a special exhibit at the Rutgers Law Library in 2013, focused on the Mount Laurel doctrine, its history, and its legacy. I just discovered them while I was going through old photos, and thought they might be of interest to some readers. Incidentally, I was in John Payne’s Con Law class during his last semester of teaching at Rutgers. His untimely death was jarring for those of us who were in his class. Interesting fact: he and his wife lived in a Frank Lloyd Wright house, in Glen Ridge.
One New Jersey Supreme Court case, Cashin v. Bello, focused on a real estate matter this week. It was an unusually interesting case. The Star-Ledger explains:
The legal issue involves the grounds upon which a landlord can evict a tenant in order to occupy a home. Under New Jersey law, a landlord may evict a tenant from a building with three units or less if he or she intends to occupy the unit.
However, Cashin was prevented from evicting Bello for many years because she also owns an adjacent apartment building at 627 Washington Street with five rental units and both the apartment and the converted garage are listed in tax records as being part of the same property.
Bello has been living in the carriage house since 1973, and is paying just $345 per month under the Hoboken rent control law. Cashin — whose name seems apt in this case — has been trying to evict Bello since the 1980s. Now she can. The Supreme Court held that the lower courts had erred by treating the entire land parcel as a single building, containing more than three units, rather than treating the carriage house, alone, as a single, one-unit building. The temporary New Jersey Courts link is alive for now, but the original opinion will be archived next week at the Rutgers Law Library in Newark.
For your curiosity’s sake, here’s a look at the house:
New Jersey now has the highest percentage of mortgaged homes in foreclosure, out of all the states. NJ Spotlight has all of the dismal details. Here in West Orange, there are still quite a few large properties — some with incredible architectural details, or panoramic views of the Manhattan skyline — that remain entirely abandoned, six years after 2008.
I created a new list (below, right column) of New Jersey legal research resources. These may be helpful for pro se projects, and also just for anyone who likes having access to the whole body of state law from one simple list. People seem happily surprised to learn that the Rutgers Law Library has a free statutes annotated resource, which allows you to discover court decisions that have cited and/or interpreted a particular section of law. The MOD-IV is also an indispensable resource for anyone challenging a property tax assessment, or engaging in real estate sales research.
I’m looking to take on some new clients in estate planning. The work offers a great opportunity to help clients while also avoiding some of the bad karma of adversarial work. Its legal issues also overlap with a lot of the property-based considerations in land use. If you know anyone in New Jersey who needs to update his or her estate planning documents — powers of attorney, wills, living wills, or trust documents — please send them along!
There were no reported land use or zoning decisions out of the New Jersey appeals courts in the last two weeks. One unpublished case, Buckley v. Godlewski, focused on a challenge to the Stone Harbor ZBA’s decision to grant a second variance for a single property, without considering whether there had been sufficient changes in circumstance since the first variance had been granted for the latter application to survive a res judicata challenge. In a per curiam opinion, the two-judge panel wrote:
The [ZBA] improperly considered defendants’ second variance application under the applicable statutory criteria before first determining whether defendants had demonstrated changed circumstances or other good cause warranting reconsideration of their first variance application. For that reason, we are constrained to reverse and remand to the Board for “a correct application of the relevant principles of land use law.” (Citation omitted.)
It seems like there has been a lull in land use and zoning decisions recently. As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived next week at the Rutgers Law Library in Newark.
The Bergen Record has a piece that describes the differing responses by New York and New Jersey to the aftermath of Hurricane Sandy. In New York, the Cuomo administration is intent on pushing a buyout program in Long Island that would pay homeowners the pre-storm market values for their properties, and encourage the abandonment of flood-prone areas. In New Jersey, the Christie administration is providing $10,000 subsidies to those who will rebuild and return to the Shore. For what it’s worth, I think Cuomo’s approach is the more sober of the two. But the emotional appeal of Christie’s plan is undeniable, and possibly irresistible in the aftermath of such devastation.
The New Jersey Senate is considering legislation that would amend the Local Redevelopment and Housing Law (LRHL) to reflect the clarified blight prerequisite from the Gallenthin decision, and also to incorporate a response to the due process concerns that were raised in the DeRose case.
The statute presently reads:
(e) A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.
Post amendment, it would read:
(e) A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real properties therein or other similar conditions which impede land assemblage or discourage the undertaking of improvements, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare, which condition is presumed to be having a negative social or economic impact or otherwise being detrimental to the safety, health, morals, or welfare of the surrounding area or the community in general.
♦ The bill would create two distinct classes of redevelopment areas: condemnation and non-condemnation. Councils would be required to choose a class when directing their planning boards to investigate the potential for redevelopment among certain parcels, and future actions would be limited by their choices.
♦ The bill would strengthen the requirements for noticing property owners in potential redevelopment areas, particularly with regard to eminent domain in proposed condemnation redevelopment areas.
The bill is sponsored by two Democrats, Jeff Van Drew (Cape May) and Ron Rice (Essex). S-2447 cleared the Community and Urban Affairs committee with unanimous support (5-0) earlier this month. If you’re interested in how the states are tackling eminent domain issues in the post-Kelo landscape, then the markup is worth a look.
There was one published decision on land use in the New Jersey appellate courts this week. Motley v. Borough of Seaside Park Z.B.A. addressed the question of destruction, as used in N.J.S.A. 40:55D-68, and upon which the continued toleration of a nonconforming use turns. In this case, the plaintiff-respondent submitted a plan to the Seaside Park Z.B.A. for certain renovations to his property, which contained two residential structures — a nonconforming use in what has been a single-family zone since the 1970s. The Board approved his plan, but upon getting to work the plaintiff’s contractor apparently discovered significant structural issues that required taking the structure down to its foundation and footings. After a building inspector observed the extent of the demolition, a code-enforcement officer issued a stop-work order. Plaintiff lost an appeal to the Z.B.A. to lift the order. The lawsuit followed.
At issue was whether the plaintiff’s extensive dismantling and re-mantling had merely constituted a partial destruction of the non-conforming use, which would have required that use to continue to be tolerated under the borough’s zoning ordinance; or whether his actions had constituted a total destruction, after which any new construction on the parcel would have to conform to the present specifications of the ordinance. The trial court found, among other things, that the plaintiff’s actions had only constituted a partial destruction, and that policy reasons (viz., the importance of encouraging the proper maintenance of non-conforming structures) also supported allowing the plaintiff to rebuild. Accordingly, the Law Division vacated the stop-work order. But in an opinion published this week, an Appellate Division panel reached different conclusions and reversed the trial court’s order. The A.D. noted that New Jersey case law is generally opposed to extending the lives of non-conforming uses. Comparing the facts with those of the Lacey case, and others, the court concluded that a total destruction had taken place. Thus, a variance would have to be obtained in order to build something on the parcel that contravened the land use ordinance. In addition, the court found that the plaintiff had flouted the limits that the Board had initially set on his actions. Finally, the panel was unpersuaded by the policy reasons given by the trial court. Accordingly, it reversed the lower court’s decision vacating the stop-work order.
There was one unreported land use decision in the A.D. last week. I missed it at the time, because I was tied up with an event at one of the research centers, so here’s the belated squib: In Sharbell Building Company LLC v. Planning Board of the Twp. of Robbinsville, a three-judge panel affirmed a final judgment of the Law Division that had reversed the Board’s denial of an application to convert an approved, age-restricted housing complex into a development for residents of all ages. The court held that state legislation facilitating the approval of such conversions (in response to the changing housing marketplace) superseded the township’s zoning ordinance; and that prior to rejecting the proposal, the Board had focused on the wrong issues when it considered the impact of possible additional children on the local tax base, rather than considering the land use implications of the proposal. (You’ve gotta love it.) As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.
There were no reported land use or zoning decisions out of the New Jersey appeals courts this week. One unreported case did hinge on a reading of the Municipal Land Use Law. In the facts leading up to CJS Investments, Inc. v. Mayor and Council of the Twp. of Robbinsville, the Council had failed to either accept or reject an engineer’s official report about the plaintiff developer’s completed roadway improvements within a 45-day period, as required by N.J.S.A. 40:55D-53e(1). An Appellate Division panel affirmed the Law Division’s ruling, which had granted the developer’s requests to be released from its performance guarantees on the work at issue and to have the Township pay its legal fees. Among other things, the panel found that the Council’s inaction did not constitute a rejection of the engineer’s report. As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.
There were no reported decisions on land use or zoning in the past two weeks, but there was one reported decision on eminent domain last week: In Borough of Merchantville v. Malik & Son LLC, et al., an Appellate Division panel affirmed a trial court’s holding that a borough was not required to negotiate with a lien holder — even though that party had foreclosed on the property at issue — before proceeding to an action against the owner of record, as described in N.J.S.A. 20:3-6. In an opinion written by Presiding Judge Francine I. Axelrad, the panel followed a rule set down in a 1997 case, City of Atlantic City v. Cynwyd Investments, which had held that the title owner was the proper negotiating partner for a public authority in a condemnation; the panel was unpersuaded by attempts to distinguish the earlier holding (which was based, among other things, on the practicality of not requiring the government to enter negotiations with every potentially interested party) from the case on appeal. On a separate point, the court held that the the owner of record in this case, who had rejected the Borough’s one-time offer, had failed to subsequently provide evidence that would counter the fairness of the Borough’s underlying appraisal. Among other things, the court reiterated a rule that previous purchase offers for much higher amounts (but which never manifest as sales) will not negate the findings of a formal appraisal.
Among unpublished opinions, one recent case addressed an inverse condemnation claim flowing (in part) from the actions of a planning board. In Woodruff v. U. S. Home Corp., et al., an Appellate Division panel affirmed a trial court’s granting of summary judgment to the Township of Upper Deerfield, in Cumberland County, based on the fact that the challenge to the planning board’s approval of a subdivision was time-barred by Rule 4:69-6(a), and did not meet any of the established criteria for extending the 45-day period of time, under Rule 4:69-6(c), “in the interest of justice.” The court also affirmed the trial court’s decision that storm water runoff from the subdivision’s board-approved storm water management system did not constitute a compensable inverse condemnation. Following the federal criteria for takings claims, the A.D. based its affirmation on the lack of any permanent, physical occupation of the property, and the minimal impact of intermittent water in an unused ravine on the claimants’ use of their property. As always, the temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.
A reader (who isn’t a lawyer) asks: Why read summaries of unpublished court opinions when they don’t represent applicable law? It’s a good question, and I’ll try my best to tackle it. First, the reader is right: Unpublished opinions have no precedential value in the courts. That means that future courts are never required to follow the holdings of these cases. Second, in New Jersey and many other jurisdictions, it would be a violation of court rules for a lawyer to cite an unpublished opinion even for its persuasive value without explicitly noting that the case was unpublished, and providing copies of the cited opinion and all known contrary unpublished opinions to the court and opposing counsel. In short, the courts strongly discourage litigants from explicitly basing their arguments on the reasoning of unpublished cases. So, why look at these cases? The best answer I can provide is that the cumbersome (and often prohibitive) nature of unpublished opinions in the course of litigation does not mean that the reading and awareness of these decisions is without value.
For a number of reasons, the vast majority of trial court opinions and as-of-right appellate opinions are unpublished. (These include the common recurrence of similar issues, a desire by judges to maintain a manageable and consistent set of controlling precedents, and a desire by judges to make decisions on instant cases without being subjected to eternal, hairsplitting scrutiny.) But in spite of the practical bases for excluding most decisions from precedent, such decisions still do show the law in action. They show general arguments that have prevailed in real cases. And particularly in a narrow subject area, unpublished opinions can offer valuable insight into the reasoning of courts and (sometimes) individual judges. In addition, unpublished opinions shed a great deal of light on the real issues and disputes that are arising within the context of a particular specialty (like land use and zoning) at any given time. So, reading unpublished opinions can be a valuable way to keep up with the changing landscape. Finally, a lot of the unpublished cases are just plain interesting. Because they are not written to be precedent, they often do not involve major legal controversies that would require a great deal of context to be understood. Instead, these decisions tend to focus on the application of well-worn rules to a unique set of facts, and provide insight into the politics, strategies, and tactics of the individuals whose experiences come in contact with the legal system. For all of these reasons, I think it’s good for lawyers to keep an eye on the stream of unpublished opinions in their areas of interest.
There were no published opinions on land use or zoning in the New Jersey appeals courts this week. Among unpublished opinions, three touched on land use or zoning matters.
1. In RIYA Cranbury Hotel, LLC v. Z.B.A. of Twp. of Cranbury, et al., an Appellate Division panel affirmed a trial court’s holdings that a banquet facility constituted a restaurant under the town’s zoning ordinance; that an architectural feature did not constitute a sign, under the same ordinance; and that the granting of a D variance permitting a wine shop in a zone whose ordinances did not specifically allow such a use exceeded the limited powers of discretion that zoning boards enjoy to grant use variances.
2. In Kanter v. the Municipal Council of Wallington, et al., a pro se appellant challenged a decision by the local zoning board to grant a variance to a politically-connected company. The board’s decision had subsequently been upheld by the municipal council, and then by the Superior Court, on the challenged points. The case did not raise any substantive issues of New Jersey land use or zoning law, but instead raised procedural points, mainly stemming from alleged technical violations of the Open Public Meetings Act. Here, the Appellate Division panel affirmed the trial court’s disposition of the case, allowing the board’s decision to stand.
3. Finally, in Ginsburg Development Companies., et al. v. Twp. of Harrison, an A.D. panel vacated a trial court’s holding that a developer would not have to pay its share of infrastructure improvements, pursuant to a developer’s agreement, until it commenced building. The A.D. distinguished the facts of this case from those of two precedents on which the lower court had relied. The panel found, inter alia, that because the developer had not disavowed its plans (which would necessitate the improvements), or sought to modify those plans in such a way that its presumptive pro rata share of the resulting costs would change, that the facts of this case were inconsistent with those of the precedents. The judges also noted that a contract had already been awarded for the work of those improvements, and that, in awarding that contract, the township had acted pursuant to its agreement with the developer.
The Times editorial page expressed its support for a strong Mount Laurel doctrine, as Governor Christie continued seeking to dismantle New Jersey’s Council on Affordable Housing (COAH). Christie also vetoed the latest incarnation of the foreclosure land-bank for affordable housing, but he seems open to a possible reworking of its objectives through new legislation.
The New Jersey Supreme Court has accepted last year’s recommendation from the Professional Responsibility Rules Committee and relaxed the bona fide office rule. This change should facilitate simpler, less expensive, and more tech-smart ways to operate small firms. Meanwhile, the I.R.S. is simplifying the tax deduction process for costs associated with home-based offices.
There were no reported land use or zoning decisions from the New Jersey appeals courts this week. Among unpublished cases, there was just one that centered on land use: Ingenito v. Point Pleasant Beach Z.B.A., a January 22nd per curiam opinion from an Appellate Division panel. It was actually a pretty interesting case. It began as a dispute about whether one of two structures on a residential-zoned parcel could be used to carry on a home-based business, without its owner first obtaining a D-variance from the local board. The plaintiffs, neighbors, pleaded their case on the theory that the business, a yoga studio, was being conducted in an accessory structure, rather than in the primary one, and that the use therefore failed to meet the precise definition of a home-based business. The trial court agreed with the plaintiffs and sent the matter back to the Z.B.A. for a variance proceeding. The court then accepted the variance that the Board subsequently issued. The plaintiffs appealed. Here, the A.D. sided with the defendants — the property owners and the Z.B.A. — finding that the business was being conducted in one of two primary structures, and that, accordingly, no variance had ever been required. In addition, the panel held that even if the variance had been required, the trial court’s blessing of that variance had been proper. The temporary New Jersey Courts link is alive for now, but the opinion will be archived at the Rutgers Law Library next week.
There were no published New Jersey decisions on land use this week. In the unpublished world, an Appellate Division panel affirmed the trial court’s holding in Bisceglie v. Oz, et al. in favor of the defendants. The plaintiff, a next-door neighbor, sued the Ozes, whose newly-planted cedar trees had obstructed his view of the New York City skyline. The plaintiff claimed that the trees constituted an illegal fence under a borough ordinance. The original case was not decided on its merits, but on a finding that the plaintiff had not exhausted his remedies with the Cliffside Park Z.B.A. The A.D. affirmed, noting that the plaintiff had sought more than just an interpretation of law, and that a number of fact-specific questions could have been developed through the zoning board process. The original opinion is available (for now) from the New Jersey Courts website, and will be archived at Rutgers next week.
Just a couple of unpublished opinions from the Appellate Division this week: In Rosenblum v. Z.B.A. of the Borough of Closter, et al., the court reversed a Law Division ruling that had affirmed the zoning board’s granting of a D variance for commercial uses, finding that the requisite criteria had not been met. The winning appeal was argued pro se by the plaintiff — an aggrieved neighbor. Meanwhile, in Gourley v. Monroe Twp., the court affirmed a Chancery decision to deny plaintiffs’ claims, including a reverse condemnation claim that they had brought against the township for damage from storm water runoff that may have been exacerbated by adjacent, permitted land development. The temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.
There were no published opinions on land use or zoning this month, from the Appellate Division or the Supreme Court. There was one unpublished opinion from the A.D. last week, Montague v. Borough of Deal, which addressed board discretion about variances. The temporary New Jersey Courts link is alive for the moment, but the opinion will be archived at the Rutgers Law Library next week.
The Star-Ledger has an op-ed by Peter Singer and Paul Shapiro in support of a bill (A-3250) that is working its way through the New Jersey General Assembly. The law would ban the use of gestation crates for pigs on New Jersey farms. The companion bill passed the Senate in June, 35-1. According to the authors, similar laws are already on the books throughout Europe, and in nine other American states. Seems like a step in the right direction.
The New Jersey Department of Health is now signing up patients for the state’s newly minted medical marijuana program. The state law that established the framework for the program (N.J.S.A. 24:6I-1, et seq.) was signed by Gov. Jon Corzine in the last days of his outgoing administration, in early 2010. As LT has noted, the program has since been implemented with painful slowness by Gov. Chris Christie’s administration, and has also been subjected to a broad array of land-use obstacles from municipal authorities, as well. (Viz., although six dispensaries have been approved, in theory, only two have yet secured retail space: one in Montclair; and another in Egg Harbor, which is near Atlantic City.)
Update, 8/26: A third location has been secured on U.S. 1 in Woodbridge.