Dover Tp. Homeowners & Tenants Ass'n v. Dover Tp.

Decision Date02 April 1971
Citation276 A.2d 156,114 N.J.Super. 270
PartiesDOVER TOWNSHIP HOMEOWNERS AND TENANTS ASSOCIATION, Plaintiff-Respondent, v. TOWNSHIP OF DOVER, Planning Board of the Township of Dover, Defendants, and Hovsons, Inc., Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Stewart M. Hutt, Woodbridge, for appellant (Hutt & Berkow, Woodbridge, attorneys; Stewart M. Hutt, of counsel and on the brief; Jay M. Hollander, Woodbridge, on the brief).

Gaetano J. Alaimo, Toms River, for respondent.

Before Judges KILKENNY, HALPERN and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Defendant Hovsons, Inc. appeals from a judgment setting aside 'tentative and final approvals granted by the defendant Planning Board of the Township of Dover to Defendant Hovsons, Inc., in connection with its application for a P.U.D. project pursuant to the Planned Unit Development Ordinance and statute, * * *,' and enjoining the Township of Dover, the Planning Board of the Township of Dover and Hovsons, Inc. 'from further proceeding under the P.U.D. application of defendant Hovsons, Inc., or from doing, constructing or causing any building or activity on the site pursuant to said application.'

On February 25, 1969 the township adopted 'An Ordinance Allowing Planned Unit Developments In Certain Areas of the Township of Dover, County of Ocean, Enacted Pursuant to the Powers Granted In R.S. 40:55--54 et seq., Known As the 'Municipal Planned Unit Development Act (1967)' In and for the State of New Jersey.' The ordinance provided in section 5 that the planning board was the municipal authority to administer the powers under the ordinance.

Anticipating the adoption of the ordinance, Hovsons on February 13, 1969 submitted an application to the planning At the public hearing the attorney representing the applicant requested that the witnesses testifying in support of the application be sworn. The chairman of the planning board, however, felt that swearing the witnesses was not necessary. Two witnesses testified in support of the application. At the conclusion of the hearing a motion was made to approve the preliminary plan subject 'to road pattern and topo meeting the Township Engineer's approval, problem regarding the intersection of Indian Hill Road caused by the high elevation of land at this point, some provision made for person coming south entering the site to be worked out with the County. Additional information regarding parking, entrance and exit, and the manner in which the model area will be used after project is completely sold.' The motion was unanimously adopted. There were no 'findings of fact related to the specific proposal' nor were the reasons for the approval given; nor did the motion 'set forth with particularity in what respects the plan would or would not be in the public interest * * *,' as required by N.J.S.A. 40:55--61(b). At the same meeting final approval was given for the model area subject to the same conditions. No transcript of the hearing was made as required by N.J.S.A. 40:55--60(b).

board for tentative approval of a Planned Unit Development consisting of 1,344 housing units and for final approval of the first section of the P.U.D. consisting of 32 units. Notice of a public hearing to be held by the planning board on March 3, 1969 was published in a local newspaper on February 20. In addition, notices were sent to the vast majority of people living within 200 feet of the property involved.

The application that was submitted stated that the site to be covered by the development was made up of 22 parcels comprising approximately 400 acres. It stated:

The site is made up of approximately 22 in number of parcels as they are presently shown on the Dover Township Tax Map in Hovsons obtained building permits for the model area on March 21, 1969 under which ten model homes have been constructed.

Blocks 442, 443, and 414. Hovson's Inc. owns in fee approximately 115 acres of this land, and with respect to the remaining acreage has entered into written contracts to purchase.

By letter dated May 8, 1969 the township attorney wrote to the township clerk, sending a copy to Mr. Hovnanian, president of Hovsons, Inc. The letter stated that the attorney had made a review of two applications submitted to the planning board for approval of Planned Unit Developments, one of which was the application of Hovsons. He pointed out that a date had been set for the public hearing before the adoption of the ordinance and that there had been no written resolution granting approval 'setting forth in detail findings arrived at after the public hearing; stipulations or conditions respecting such matters as time schedules, etc.'

On May 19, 1969 the planning board adopted a resolution reciting that on March 3, 1969 preliminary approval had been granted to Hovsons and 'through inadvertence the said resolution did not set forth the required statutory finding of fact.' The resolution that was adopted was aptly described by the trial judge, '(it) seems to be nothing but conclusions which parrot the statutory language.'

Mr. Herbert Miller, a member of the planning board, participated in the March 3, 1969 meeting and voted in favor of the motion adopted at that meeting and also voted in favor of the May 19, 1969 resolution. He was employed by Lawyers Title Insurance Company in charge of its Toms River office. Lawyers Title Insurance Company did all the title work on the project for the defendant and, in fact, does all of the title work for Mr. Hovnanian and his various corporations.

The plaintiff association is a group of residents of Dover Township, some of whom live within 200 feet of the project. Its formation was triggered by the planning board's approval By order dated September 2, 1969 an interlocutory injunction was issued. By order dated October 3, 1969 defendant's motion to dismiss the complaint for lack of standing of plaintiff was denied. On or about the same date an order was entered denying defendant's motion for summary judgment. Application for leave to appeal the latter two orders was denied by the Appellate Division.

of a Planned Unit Development of Cali Associates. The complaint in this action attacked not only the resolution approving the Hovsons' development but also the resolution approving the Cali Associates' development. Members of the plaintiff were aware of the construction going on at the Hovsons' development no later than March 30, 1969. The complaint was not filed until June 18, 1969.

The ordinance permitting the construction of Planned Unit Developments in the township was repealed before the hearing in the trial court on January 12, 1970. Judge Edward V. Martino in an oral opinion set aside the action of the planning board as void because of the conflict of interest of Mr. Herbert Miller, citing Hochberg v. Freehold, 40 N.J.Super. 276, 123 A.2d 46 (App.Div.1956), certif. den. 22 N.J. 223, 125 A.2d 235 (1956).

Defendant argues that plaintiff association, being neither the municipality enforcing its zoning ordinance, a taxpayer nor a citizen of the municipality, has no standing to bring the action. A taxpayer without showing special damage may challenge an action of a governing body affecting the overall integrity of the zoning plan of the municipality. Booth v. Board of Adjustment, Rockaway Tp., 50 N.J. 302, 234 A.2d 681 (1967). Where a challenge to an action by the governing body raises the question of gross illegality or abuse of public responsibilities, a plaintiff need not show special damage. Koch v. Seaside Heights, 40 N.J.Super. 86, 93, 122 A.2d 250 (App.Div.1956), aff'd o.b. 22 N.J. 218, 125 A.2d 402 (1956). Any one of the members of plaintiff, all of whom are residents of the township, would have standing to maintain this action. Since the matter raised by the complaint alleges illegality N.J.S.A. 40:55--1.4 states in part:

on the part of the planning board affecting the integrity of the zoning ordinance of the township, we hold that plaintiff corporation has standing to sue in the interest of its members. Crescent Park Tenants Ass'n v. Realty Equities Corp. of New York, 58 N.J. 98, 275 A.2d 433 (1971); Oneida County Forest Preserve Council v. Whele, 309 N.Y. 152, ...

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4 cases
  • Care of Tenafly, Inc. v. Tenafly Zoning Bd. of Adjustment
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 27, 1998
    ...that a disqualifying interest held by a board member renders the approval "void." See Dover Tp. Homeowners & Tenants Ass'n v. Township of Dover, 114 N.J.Super. 270, 279, 276 A.2d 156 (App.Div.1971) (the doctrines of laches, estoppel and relative hardship are inapplicable when the actions of......
  • Yousefian v. Municipal Council of Wayne Tp.
    • United States
    • New Jersey Superior Court
    • July 5, 1977
    ...whether a project is appropriate for a particular area. In fact, there is dictum to that effect in Dover Tp. Homeowners v. Dover Tp., 114 N.J.Super. 270, 276 A.2d 156 (App.Div.1971). Although the case dealt with another area, the court in Dover did state (at 278, 276 A.2d at 161) that "the ......
  • Wolf v. Mayor and Borough Council of Borough of Shrewsbury
    • United States
    • New Jersey Superior Court — Appellate Division
    • December 31, 1981
    ...N.J.S.A. 40:55-34 (repealed by L. 1975, c. 291, § 80, eff. Aug. 1, 1976) and N.J.S.A. 40:49-2. See Dover Tp. Homeowners v. Dover Tp., 114 N.J.Super. 270, 277-278, 276 A.2d 156 (App.Div.1971). The Legislature's purpose in requiring that such ordinances be published in advance of passage was ......
  • Aurentz v. Planning Bd. of Little Egg Harbor Tp.
    • United States
    • New Jersey Superior Court
    • October 19, 1979
    ...can be proper in any case." (at 219, 162 A.2d at 869). Judge Lane, for the Appellate Division in Dover Tp. Homeowners v. Dover Tp., 114 N.J.Super. 270, 276 A.2d 156 (App.Div.1971), Where a member of a planning board having an interest prohibited by this statute participates in planning boar......

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