BERGEN COMMUNITY ACTION PROGRAM, INC. v. ZONING BOARD OF ADJUSTMENT FOR THE CITY OF HACKENSACK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2840-04T22840-04T2

BERGEN COMMUNITY ACTION

PROGRAM, INC.,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

FOR THE CITY OF HACKENSACK,

Defendant-Appellant.

__________________________

 

Submitted October 31, 2005 - Decided

Before Judges Alley and Fisher.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-335-04.

Richard Malagiere, attorney for appellant (Mr. Malagiere, of counsel and on the brief; Sandra DeFeo, on the brief).

Price, Meese, Shulman & D'Arminio, attorneys for respondent (Reginald Jenkins, Jr., on the brief).

PER CURIAM

Plaintiff, the Bergen County Community Action Program, Inc. (Program) sought to expand the hours of its operations in order to provide facilities in the winter to homeless persons in Bergen County for emergency shelter, at times when other shelters would be full. Defendant, the Zoning Board of Adjustment for the City of Hackensack (Board), denied the Program's attempt to expand its hours.

The provision of shelters for homeless persons is but one of a number of antipoverty services that the Program furnishes to persons in Bergen County, including those who are homeless and indigent. Other services include job counseling, substance or alcohol dependency counseling, health care resources, nightly hot meals, and distribution of emergency food packages.

The Program asserts that the population that it serves frequently includes homeless persons, families with children, the unemployed, and persons with substance dependencies, as well as disabled and elderly persons, and that this is an extremely vulnerable population that frequently lacks access to warm and safe sleeping places and clean and sanitary facilities, as well as an ability to maintain personal hygiene. Those who are served by the Program include about one hundred persons daily in Hackensack and the vicinity, of whom more than half are nightly placed in shelters by the Program.

In March 2000, the Program leased premises at 67 Orchard Street in Hackensack to provide a "drop-in" center to provide services to the homeless and impoverished. This facility was established as the successor to a facility located at 214 State Street in Hackensack which provided the same services.

The 67 Orchard Street building (premises) is located in an industrial zone, at the end of a dead end street, surrounded by garages, equipment yards, warehouses, and places of manufacture. The road is almost entirely commercial, used hardly at all by pedestrians or private cars. The Program sought the Zoning Board's approval to operate from 7:00 a.m. to 7:00 p.m. so it could provide services for about fifty-eight persons nightly during the winter months. Actually, however, the number of persons served was twenty more per night than expected, or seventy-eight persons nightly.

After the Program initially was denied the requested permission to operate by the Board, on appeal to the Superior Court, Law Division, Bergen County, Judge Jonathan N. Harris reversed the determination of the Board and remanded. The Program then on October 21, 2004, applied to the Board to expand the operation to twenty-four hours a day between November 1 and April 1, for the purpose of providing shelter space for the homeless, limited to the winter months, and only when other shelters were full.

This application was denied by the Board in a resolution dated January 21, 2004, but upon appeal to the Superior Court, Law Division, Bergen County, Judge Robert P. Contillo granted temporary restraints which allowed the Program to operate on a twenty-four hour basis in light of the emergency situation. Judge Contillo held a trial on the Program's complaint on June 4, 2004, and found that expansion of the Program's use was inherently beneficial and that the Board's denial of the application was arbitrary and capricious. As a result, he reversed the denial by the Board and remanded the matter for approval. In doing so, he stated that no other conditions were required, and that

I, therefore, decide and determine that I must reverse the zoning board of adjustment in this regard. I'm not sending it back with any requirements as to conditions because [there] were none articulated here as being needed, such as would be required to ameliorate any concerns with respect to pedestrian traffic.

So, I find that the expansion proposed does not necessitate further or additional conditions. Other than the conditions articulated by the applicant in his presentation to the board as to, who is going to be on duty, when this service is going to be utilized. An Order of Judgment and Remand was signed and filed on June 24, 2004, which stated in relevant part:

[T]he Application of BC CAP be and hereby is remanded to the Board for a public hearing for the limited purpose of adopting and memorializing a resolution granting to BC CAP a use variance for the expansion of a non-conforming use to expand the hours of operation of its drop-in center located at 67 Orchard Street, Hackensack, New Jersey, to 24 hours daily from November 1 through April 1, and directing that BC CAP shall be granted a certificate of occupancy and/or such other permits as may be necessary for such use as requested in its Applications consistent with the terms of this Order and the Court's decision herein.

Rather than approve the remanded application at its meeting on September 15, 2004, the Board, despite the objection of the Program, sought to impose certain conditions upon its approval. These would require a curfew and lockdown of the persons served by the Program, as well as the hiring of security personnel and the posting of a sign on premises requiring the Program's clients to remain on premises.

The Program and the Board, after discussions, reached an agreement as to certain conditions to be placed upon the Program's use of the drop in facilities, but when the Board approved the Program's application respecting the premises with the agreed on conditions, it also voted to impose additional conditions. These were to "(1) require the local police department to inspect the premises with regard to the adequacy of the present staffing; (2) to require the installation of an alarm system to notify when any person opened the rear door of the facility; and (3) to impose a curfew commencing at 9:00 p.m. rather than 11:00 p.m."

When the matter went before the Board again, it attempted to impose additional conditions. Judge Contillo announced from the bench, with regard to the Program's motion to strike the additional conditions imposed by the Program. The subject of the present matter is the Board's appeal from Judge Contillo's January 14, 2005 order. The Board asserts, among other things, that the trial court erred in precluding the Board from attaching conditions to the use variance, contending among other things that the condition requiring the installation of an alarm system to notify the Program when any person opens the rear doors of the facility is reasonable; that the condition requiring a 9:00 p.m. curfew is reasonable, as is the condition requiring the Hackensack Police Department to investigate the facility.

It is unnecessary for us to reach the merits of these issues because of the untimeliness of the appeal. The order signed by the court on June 24, 2004, provided that it was a final order appealable as of right, and the time within which such as appeal may be taken is forty-five days. R. 2:4-1. The Board, however, took no timely appeal of the June 24, 2004 judgment. The Board failed to abide by the specific terms set forth therein. As a result, this appeal is untimely and should be dismissed, and it is unnecessary for us to reach the other grounds asserted by the Board.

Thus, under the Rules of Court, this appeal is untimely and we dismiss. For these reasons, we do not reach the other issues raised by appellant.

 
The order appealed from is affirmed.

(continued)

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A-2840-04T2

November 21, 2005