Allocco and Luccarelli v. Township of Holmdel

• Court: Superior Court of New Jersey
• Citation: 691 A.2d 430,299 N.J.Super. 491
• Parties: ALLOCCO AND LUCCARELLI, Plaintiffs, v. TOWNSHIP OF HOLMDEL and The Township Committee of The Township of Holmdel, Defendants. HOLMDEL RESIDENTS FOR REASONABLE DEVELOPMENT, INC., Plaintiff, v. ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF HOLMDEL and Revlon, Inc., Defendants. TOWNSHIP OF HOLMDEL, Plaintiff, v. ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF HOLMDEL and Revlon, Inc., Defendants.
• Decision Date: 30 January 1997

Page 491

299 N.J.Super. 491 691 A.2d 430 ALLOCCO AND LUCCARELLI, Plaintiffs,
v.
TOWNSHIP OF HOLMDEL and The Township Committee of The
Township of Holmdel, Defendants.
HOLMDEL RESIDENTS FOR REASONABLE DEVELOPMENT, INC., Plaintiff,
v.
ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF HOLMDEL and
Revlon, Inc., Defendants.
TOWNSHIP OF HOLMDEL, Plaintiff,
v.
ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF HOLMDEL and
Revlon, Inc., Defendants. Superior Court of New Jersey, Law Division,
Monmouth County. Jan. 30, 1997.
Decided May 15, 1997.

[691 A.2d 431]

Page 498

Robert F. Munoz, Freehold, for plaintiffs, Township of Holmdel (Lomurro, Davion, Eastman and Munoz, attorneys).

Page 494

Anthony T. Bruno, Red Bank, for defendant, Zoning Board of Adjustment (Reussile, Mausner, Carotenuto, Bruno and Berger, attorneys).

Dante J. Romanini, Cherry Hill, for defendant/crossclaimant, Revlon, Inc. (Kozlov, Seaton, Romanini and Brooks, attorneys).

HAYSER, J.T.C., temporarily assigned.

In this, the third and final phase of this consolidated litigation, the issue presented is whether the defendant Board of Adjustment wrongfully denied site plan approval to the defendant/crossclaimant, Revlon, Inc. ¹ Essential facts as to the approval denial are not in dispute.

On or about March 23, 1992, defendant/crossclaimant filed an application for a use variance, certain bulk variances and site plan approval. Hearings as to the use variance request commenced on June 10, 1992, and continued until November 11, 1992, when the applicant requested and was granted bifurcation of its application. ²

On December 2, 1992, a resolution was adopted by the defendant Board by a vote of 6-0, wherein it was acknowledged that "the applicant has also bifurcated its application pursuant to R.S. 40:55D-76 requesting only a use variance," and was granted the use variance requested, but, as acknowledged by the defendantlaimant

Page 495

at the November hearing, the approval was conditioned upon further site plan review by the Board.

[691 A.2d 432] Thereafter, without any new public notification, the hearings as to the site plan commenced on January 13, 1993, and continued until April 13, 1994. ³ Certain events occurred during the pendency of the site plan review that eventually impacted upon defendant Board's decision. On April 13, 1993, the Township's Planning Board adopted a Master Plan update which culminated in the adoption of Township Ordinance No. 94-5 on March 8, 1994. This affected defendant/crossclaimant's desired use of its property following the granting of the use variance.

On May 11, 1994, the Board adopted by a 6-0-1 vote a resolution denying site plan approval. Thereafter, the defendant/crossclaimant filed an amended answer in plaintiffs' then pending actions to assert a crossclaim challenging the defendant Board's denial of the site plan approval.

Defendant/crossclaimant takes issue with the following findings and conclusions set forth in the defendant Board's resolution of denial:

1. At paragraphs 1 and a and c, on pages 5 and 6 of its resolution, the defendant Board reached certain conclusions as to on-site traffic circulation and its negative impact upon off-site traffic conditions concerning Centerville Road, Union Avenue and Route 35, both as to the short and long-term impacts of defendant/crossclaimant's project upon those roadways in the Township.

2. At paragraph b, on page 5 of its resolution, the defendant Board concluded that a parking waiver could not be granted due to the failure to identify tenants and their parking needs for the project.

3. Finally, and in summary, at paragraph 2, on page 6 of its resolution, the defendant Board concluded that the application could not be granted due to the failure of the defendant/crossclaimant to satisfy the negative criteria as it related to "the substantial delays, traffic congestion and safety deficiencies which will occur

Page 496

on Centerville Road and the Applicant's proposed internal roadway," with also the adoption of the Master Plan update and Township Ordinance No. 94-5. ⁴

Defendant/crossclaimant essentially argues that the granting of a use variance "protects" it both from a subsequent ordinance amendment eliminating a desired developmental use, and negation by the Board considering the impact of such an ordinance upon a subsequent site plan approval request.

Defendant/crossclaimant, in support of its argument, cites, among other reported decisions, Farrell v. Estell Manor Zoning Bd. of Adj., 193 N.J.Super. 554, 475 A.2d 94 (Law Div.1984), wherein the court concluded, in discussing the nature of a use variance, that its result, in essence, is to create a conforming use and the duration can be unlimited, running with the land. But see, Villari v. Zoning Bd. of Adjustment of Deptford, 277 N.J.Super. 130, 649 A.2d 98 (App.Div.1994).

Nevertheless, it cannot be argued that one who receives the functional equivalent of a permitted use through variance relief is in a superior position to one whose proposed development is permitted under a zoning ordinance from the first moment. The fact that an ordinance is enacted in response to an application for development being filed, Burcam Corp. v. Planning Bd. of the Tp. of Medford, 168 N.J.Super., 508, 512, 403 A.2d 921 (App.Div.1979), or a building permit having issued, Donadio v. Cunningham, 58 N.J. 309, 277 A.2d 375 (1971), is not the determining factor. Nor are we concerned here with statutory protections as under, for example, N.J.S.A. 40:55D-49 or 52. Moreover, in receiving a variance conditioned upon site plan review, as well known [691 A.2d 433] by the defendant/crossclaimant, we are not concerned with

Page 497

the type of reliance or vested rights discussed in either Donadio, 58 N.J. at 322, 277 A.2d 375, or Dimitrov v. Carlson, 138 N.J.Super. 52, 58, 350 A.2d 246 (App.Div.1978).

In the final analysis, the issue here also goes well beyond simply the application of the "time of decision" rule, and the possible application of the special equities exception. See Lake Shore Estates, Inc. v. Denville Tp. Planning Bd., 255 N.J.Super. 580, 605 A.2d 1106 (App.Div.1991), aff'd o.b. Lake Shore Estates, Inc. v. Township of Denville, 127 N.J. 394, 605 A.2d 1073 (1992); Timber Properties, Inc. v. Tp. of Chester, 205 N.J.Super. 273, 500 A.2d 757 (Law...