New Jersey

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New Jersey Land Use Update

Scales and Lamp USSCThere 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.

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New Jersey Land Use Update

Scales and Lamp USSCThere 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.

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New Jersey Land Use Update

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.

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Why Read Unpublished Opinions?

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.

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New Jersey Land Use Update

Scales and Lamp USSCThere 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 temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

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NYT Endorses Mt. Laurel, Christie Vetoes Land Bank Bill

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.

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New Jersey Land Use Update

Scales and Lamp USSCThere 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.

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New Jersey Land Use Update

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.

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New Jersey Land Use Update

Scales and Lamp USSCJust 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.