Allocco and Luccarelli v. Township of Holmdel
| Decision Date | 30 January 1997 |
| 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. |
| Court | New Jersey Superior Court |
Robert F. Munoz, Freehold, for plaintiffs, Township of Holmdel (Lomurro, Davion, Eastman and Munoz, attorneys).
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 at the November hearing, the approval was conditioned upon further site plan review by the Board.
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 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 by the defendant/crossclaimant, we are not concerned with 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 Div.1984); and the recent confirmation of the rule's continued viability in Pizzo Mantin Group v. Tp. of Randolph, et al., 137 N.J. 216, 235-36, 645 A.2d 89 (1994). 5 The issue concerns the basic authority under which a board can grant such relief as the defendant/crossclaimant requested in its site plan submission.
At oral argument, defendant/crossclaimant conceded that the authority for the Board, having granted variance relief pursuant to N.J.S.A. 40:55D-70 d, to retain jurisdiction as to the matter of site plan review is to be found in N.J.S.A. 40:55D-76 b which provides, in relevant part, that "the separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the board of adjustment." Indeed, it would be difficult for the defendant/crossclaimant to argue now that it did not seek separate or bifurcated approvals from the Board, since that was precisely its argument in urging the application of the time bar rule in this litigation's first phase.
While the granting of site plan approval normally requires (if not permits) only a determination as to whether specific ordinance provisions have been met, see, e.g., Pizzo Mantin Group, 137 N.J. at 229, 645 A.2d 89, a "subsequent approval" following the granting of a use variance requires, under N.J.S.A. 40:55D-76 b, a specific determination as to whether the "approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance."
Defendant/crossclaimant is correct that there is a paucity of reported decisions as to the application of the cited statute's negative criteria. However, it appears clear that one of the purposes of continuing to impose this negative criteria for subsequent approvals once the use variance is granted is to assure that the Board's creation of what, in essence, becomes a conforming use through the decisional and discretionary process, is still reconciled with the existing zoning scheme, as the process continues. Furthermore, the variance granted can not be seen as a blanket license for the board simply to "legislate" a new use with all its particulars defined only by board fiat. It is also true that site plan approval by such a board under N.J.S.A. 40:55D-76 b is only the exercise of ancillary powers, permitted by its primary jurisdiction to grant the use variance in the first instance.
As to the first prong of the cited statute's negative criteria, defendant/crossclaimant argues that the issue of traffic congestion, much of which preexisted this proposed development, involved off-site conditions best left to subsequent resolution by the New Jersey Department of Transportation (DOT).
The impact of a project upon off-site traffic is required to be evaluated under the negative criteria. While the issue in Price Company, Inc. v. Zoning Bd. of Adj. of the Tp. Of Union, 279 N.J.Super. 327, 652 A.2d 784 (Law Div.1993), aff'd 279 N.J.Super. 207, 652 A.2d 723 (App.Div.1994), involved the denial of a use variance, it still required the evaluation as to the negative criteria being met as set forth in N.J.S.A. 40:55D-76 b. Therefore, such decisions as Dunkin' Donuts of N.J. v. Tp. of North Brunswick Planning Bd., 193 N.J.Super. 513, 475 A.2d 71 (App.Div.1984) ; El Shaer v. Planning Board of the Tp. of Lawrence, 249 N.J.Super 323, 592 A.2d 565 (App.Div.1991) certif. denied 127 N.J. 546, 606 A.2d 360 (1991); Tennis Club Assoc. v. Planning Board of the Tp. Of Teaneck, 262 N.J.Super. 422, 621 A.2d 79 (App.Div.1993); and Lionel's Appliance Center, Inc. v. Citta, 156 N.J.Super. 257, 383 A.2d 773 (Law Div.1978), are simply not relevant in considering the proper exercise of...
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