Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”

 

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Ignoring The 800 Pound Elephant Is OK! Wal-Mart Need Not Be Identified As Tenant In Public Notice For Planning Board Application

by:  Matthew J. Schiller

In Shakoor Supermarkets, Inc. v. Old Bridge Township Planning Board, the Appellate Division concluded that an applicant proposing to construct a 150,000 square foot Wal-Mart Superstore need not specify that the occupant of the retail space would be a Wal-Mart.  Rather, the Appellate Division deemed that the published public notice gave an accurate description of the property’s proposed use under the application and that technical details need not be provided. 

The objector challenged the Planning Board approval citing Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 234 (App. Div. 1996), in which the Appellate Division deemed a public notice for a proposed K-Mart insufficient.  The Appellate Division in Perlmart stated that “while the notice informed that certain variances and minor and major site plan approvals were being sought ‘for the creation of commercial lots’ in a commercial zone, it does not tell the public of the nature of that use, i.e., a conditional use K-Mart shopping center.”  The Appellate Division disagreed with the objector in Shakoor, stating that Perlmart did not hold that it was necessary for the applicant to actually identify K-Mart as the retailer in its application, but rather, that a notice should provide a “common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her.”  The notice need not be “exhaustive” to support this standard.

The notice at issue in Shakoor identified the proposed use as “a main retail store of 150,000 s.f.”    The Appellate Division concluded that the description adequately informed laypersons that a major “big box” store was proposed for the site and alerted them to possible concerns, such as traffic, commonly associated with those stores, and that such concerns were expressed at the hearings by members of the public.  Further, the Appellate Division concluded that the multiple proposed retail uses did not constitute a legitimate cause for “heightened concern” to the public that would require a more in depth description beyond those associated with a 150,000 square foot retail store.

Therefore, so long as a proposed use is described in terms that permit ordinary laypersons to understand how the property will be used and sufficiently alerted as to its potential impact upon him or her, it will likely be deemed sufficient.

Is Your Driveway A Principal Use?

by:  Greg Ricciardi

According to the  New Jersey Supreme Court, in certain circumstances the answer is yes.  On June 16, 2011, the Court held that a driveway is a principal use where, pursuant to local zoning, the driveway does not meet the definition of an accessory use.  Moreover, depending on the circumstances, you may need difficult to obtain and costly variances to get your driveway approved.  How could this happen?

The answer lies in the curious case of Nuckey v. Borough of Little Ferry Planning Bd.  These are the facts. A developer owns multiple lots and wants to build a hotel.  One of the lots has no highway access. To remedy this issue, the developer proposes to build a driveway on an adjacent lot that would continue across the corner of another lot owned by the same principals as the developer.  This proposed driveway would provide the needed highway access for the hotel.  Sounds like a simple accessory use right? Herein lies the rub. 

 

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