BERK & BERK AT HUNTERS GLEN, LLC v. TOWNSHIP OF DELRAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1309-04T11309-04T1

A-1310-04T1

A-1312-04T1

BERK & BERK AT HUNTERS GLEN,

LLC,

Plaintiff-Respondent,

v.

TOWNSHIP OF DELRAN, DELRAN TOWNSHIP

COUNCIL, DELRAN TOWNSHIP PLANNING

BOARD, and GEORGE YELLAND,

Defendants-Appellants,

and

DELRAN TOWNSHIP ZONING BOARD,

Defendant-Respondent.

 

Argued September 18, 2006 - Decided

Before Judges Lintner, S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-467-01.

Stacy L. Moore, Jr. argued the cause for appellants Township of Delran and Delran Township Council (Parker McCay, attorneys; Mr. Moore, on the joint brief).

Bennett E. Bozarth argued the cause for appellant Delran Township Planning Board (Mr. Bozarth, on the joint brief).

Carl L. Taraschi argued the cause for appellant George Yelland (Mr. Taraschi, on the joint brief).

Michael J. McKenna argued the cause for respondent Berk & Berk at Hunters Glen, LLC (Mr. McKenna, on the brief).

Respondent Delran Township Zoning Board did not file a brief.

PER CURIAM

These consolidated appeals are from the decision of Judge John A. Sweeney affirming a use variance granted by defendant Delran Township Zoning Board of Adjustment (Zoning Board) to plaintiff Berk & Berk at Hunters Glen, LLC (Berk & Berk) that allowed the construction of seventy-four residential units on a property already containing a residential complex with more than 1000 existing units. The appeals also challenge interlocutory orders entered by Judge Sweeney relating to the proper course of the litigation and the proper parties to the proceeding before him. We affirm on all appeals.

Although the history of the involved land and the procedural course of the litigation are convoluted, we recite only those facts necessary to an understanding of the issues raised by this appeal. The property for which the variances were sought was originally developed in the 1960s pursuant to a variance from the restrictions of the M-1 Limited Industrial District. In 1979, the zoning was changed to place the property in the C-3 Multifamily District subject to a restriction on further residential development. In May 2000, Berk & Berk applied to the Zoning Board for use variances to construct apartments on a ninety-one-acre site which already contained over 1100 existing apartment units.

While the variance application was before the Board, Delran (the Township or Council) adopted a new zoning ordinance in November 2000. The new ordinance changed the zoning of the existing apartment complex from C-3 Multifamily to M-2 General Industrial, making the existing structures non-conforming. When the zoning change was adopted, the Township deleted an ordinance provision that allowed, pursuant to N.J.S.A. 40:55D-17, appeals to Council from grants of use variances if taken within ten days of publication of notice of the grant. Accordingly, appeals from Zoning Board decisions were required to be made to the Superior Court. R. 4:69-1, -6(b)(3).

After hearings on July 26 and November 29, 2000, the Zoning Board denied Berk & Berk's application for a use variance for an adjacent vacant thirteen-acre lot. The transcript from the July 26, 2000, hearing has been lost or destroyed, but at the November 29, 2000, hearing, when the variance involved in this appeal was considered, Berk & Berk "adopt[ed] those parts of our testimony regarding the positive and negative criteria that appl[ied] equally, although projected, . . . to our expansion of the existing Hunters Glen Apartments." The Zoning Board agreed to "accept a reiteration of . . . testimony [from the application on the vacant parcel] and absorb it into this record" of the application for the expanded use. The record, as supplemented, indicates that the variance request was reduced to seventy-four units together with an additional sixteen additional age- or income-restricted units.

The evidence at the November 29, 2000, hearing appeared to be that the apartment complex had suffered a partial fire loss and the new units for which the variance was sought were to be located on the site of destroyed units. The record is not clear as to whether the new units would replace in whole or in part the destroyed units. The Board ultimately approved the use variance to permit construction of "74 apartments and additions to existing buildings." The resolution was adopted December 27, 2000.

On January 8, 2001, Council adopted Ordinance No. 2000-24, which restored the provision permitting an appeal of a variance grant by the Zoning Board to Council. At the same time, Council adopted Resolution 2001-1, which resolved

that the Township Council of the Township of Delran pursuant to the provisions of [N.J.S.A.] 40:69A-181(b), declares that there is an emergent need for Ordinance #2000-24 to be effective immediately upon final passage and publication of notice thereof and that said new Ordinance shall be effective [as] of the date of such actions.

Thereafter, the Planning Board and a Township resident, George Yelland, filed separate appeals to Council from the variance grant. Berk & Berk responded with a six-count complaint in lieu of prerogative writs dated February 9, 2001, seeking various relief. The only issue raised by that complaint relevant to this appeal was the claim that the Planning Board appeal was invalid. An amended complaint dated November 27, 2001, added Yelland as a defendant and a new count seeking a declaration that Ordinance 2000-24 was not effective until January 28, 2001, because no emergency justifying an immediate effective date existed.

All parties filed responding pleadings relating to the legal effect of Ordinance 2000-24 and Resolution 2000-1, including the timeliness of Berk & Berk's attack on both the ordinance and resolution. Judge Sweeney heard argument regarding the validity of Resolution 2001-1 on April 9, 2002. He concluded that Resolution 2000-1 did not describe the type of emergency contemplated by the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and, therefore, held that Ordinance 2000-24 did not become effective until after the time for appeal of the variance to Council had passed.

Nevertheless, Judge Sweeney permitted both Yelland and the Planning Board to file actions in the Superior Court to contest the variance grant within thirty days. Those pleadings were filed. On July 21, 2003, Council moved to amend its pleadings to permit it to participate as a property owner because it owned land within 200 feet of the variance site. Judge Sweeney heard argument on this application on August 21, 2003, and denied the application on the same date. On September 5, 2003, the judge heard argument on the claim that the variance constituted an arrogation by the Zoning Board of the Township's zoning authority and dismissed that claim by order dated October 2, 2003. The order also determined that neither the Township nor the Planning Board had standing to appear before the Zoning Board.

Finally, on November 20, 2003, Judge Sweeney heard argument on the merits of the claim and determined that the grant of the use variance was within the Zoning Board's discretion. Accordingly, he affirmed the variance and memorialized the decision by order of December 12, 2003. On September 30, 2004, the judge signed a consent order dismissing all remaining claims.

I

We consider first Judge Sweeney's treatment of the issues surrounding the claimed right to appeal the variance grant to Council and his consideration of Berk & Berk's challenge to the ordinace authorizing such an appeal. Berk & Berk's original complaint was dated February 9, 2001, and did not directly address the validity of either Ordinance 2000-24 or Resolution 2001-1, both of which were adopted on January 8, 2001. The complaint did, however, contain a count asserting that the appeal to Council was illegal. The direct challenge to the ordinance and resolution did not occur until the amended complaint, dated November 27, 2001, was filed. Defendants argue that the amended complaint was an untimely challenge to the ordinance because Rule 4:69-6(a) requires a prerogative writs action challenging the validity of an ordinance to be filed within forty-five days of publication of notice of adoption.

Judge Sweeney recognized that enlargement of the time within which a challenge to an ordinance must be filed is permitted "where it is manifest that the interest of justice so requires," R. 4:69-6(c), and held that

considering the fact that the issue was raised in a general way in [the original] complaint, not a direct attack on the ordinance but in a general fashion, there was at least notice that there were problems here, and I am satisfied that because we [have] a novel legal issue that[,] even if that were not done within the 45 days, that [it was filed sufficiently soon].

Generally, the "interest of justice" standard was intended to codify case law that permitted the relaxation of the time requirements governing appeals from official action in "cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Brunetti v. Borough of New Milford, 68 N.J. 576, 586-87 (1975) (footnotes omitted). But those grounds are "not exclusive, relaxation depending on all relevant equitable considerations under the circumstances." Pressler, Current N.J. Court Rules, comment 7.3 on R. 4:69 (2007) (citing Cohen v. Thoft, 368 N.J. Super. 338, 346-47 (App. Div. 2004)).

Judge Sweeney noted that the issue touched a matter of public importance, was novel, and that the challenge was filed with reasonable promptness after the issue became clear. Moreover, Berk & Berk arguably was unaware of the resolution declaring an emergency. The decision to enlarge the time period is discretionary. See Viviani v. Borough of Bogota, 336 N.J. Super. 578, 593 (App. Div. 2001), rev'd on other grounds, 170 N.J. 452 (2002). Under all of the circumstances, we cannot find that Judge Sweeney inappropriately exercised his discretion to enlarge the period of time within which the ordinance might be challenged.

We turn then to the validity of the resolution advancing the effective date of the ordinance. N.J.S.A. 40:69A-181(b) provides:

No ordinance other than the local budget ordinance shall take effect less than twenty days after its final passage by council and approval by the mayor where such approval is required, unless the council shall adopt a resolution declaring an emergency and at least two-thirds of all the members of the council vote in favor of such resolution.

The statute is silent as to the definition of an emergency. Judge Sweeney resolved the issue thusly:

There are no cases dealing with what an emergency is here, and this really goes to the heart of whether or not the ordinance could have been effective requiring the appeal to be taken to Council. Putting the issue of the standing of the Planning Board aside, which I have to do, I have looked at the cases that were cited by both sides here on what is an emergency. But more importantly, I have tried to focus in on the wording of the resolution itself because, and I think the resolution says frankly all that it could have said so I have no criticism of the draft of the resolution. I think it says all that it could have said.

But I think that there has to be more. I think that the facts supporting an . . . emergency . . . must at least be defined in some way and set forth in some detail and cannot simply exist because of some off the record telephone calls, political pressure, whatever you might want to call it. Political pressure exists for picking up garbage, for traffic concerns, for every concern that any citizen can possibly raise . . . .

But here, we're dealing with something in the context of what is right for the public health, safety and general welfare. And an emergency is not something that is generated by mistake or inadvertence. Here, that is what occurred. There was a mistake, and a legitimate mistake. Something was inadvertently taken out without consideration or not restored because of a failure to adequately review, which is the job of the Council and the Planning Board.

Here, I don't know that I could find that an emergency existed because 74 more apartments had been approved in a township where the township had said in its general substantive land use ordinance no more apartments. . . .

The fact that political pressure was brought to bear is not, in my opinion, an emergency. It does not fit within the definition of emergency as it affects the public health, safety and general welfare as the cases talk about here.

For those reasons, I am satisfied that the ordinance could not have taken effect as indicated by the resolution. It would have been effective 20 days after publication according to law and whatever the filing requirements there are in accordance

with the statute. Therefore, any appeals to the Township Council in this case are ineffective . . . .

The question of what constitutes an emergency within the meaning of the statute is a legal one and is decided by us de novo. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Nevertheless, we agree with the judge's analysis and his result.

"Emergency" has been described as "'a sudden or unexpected occurrence or condition calling for immediate action.'" Carlson v. Hannah, 6 N.J. 202, 214 (1951) (quoting Frank v. Bd. of Educ. of Jersey City, 90 N.J.L. 273, 278 (E. & A. 1916)). Nothing in the situation under consideration here was unexpected or called for the immediate application of an ordinance permitting variances to be appealed to Council. We reject appellant's claim that Council is empowered to decide, without judicial review, what constitutes an emergency justifying the acceleration of an ordinance's effective date. Had the legislature intended such a result, it could simply have provided that ordinances become effective immediately if two-thirds of the governing body votes to accelerate the effective date. The interpretation for which appellants contend renders the word "emergency" superfluous. Any interpretation that renders statutory language meaningless is to be avoided. McCann v. Clerk of Jersey City, 167 N.J. 311, 321 (2001) "'It is a cardinal rule of statutory construction that full effect should be given, if possible, to every word of a statute. We cannot assume that the Legislature used meaningless language.'" Ibid. (quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)).

Accordingly, we conclude that Judge Sweeney properly ruled that the resolution was ineffective to accelerate the operative date of the ordinance and properly required that the validity of the variance be contested in Superior Court.

II

Next, appellants argue that the judge "was in error when [he] concluded that the [Council] did not have standing to institute a legal proceeding to prevent an arrogation of its authority and to protect the public interest." Delran had asserted that the grant of the variance constituted a usurpation of its zoning authority. That claim was dismissed by order of November 12, 2003. Despite the formulation of appellants, we are satisfied that the judge did not deny standing to assert the claim; instead, after consideration of the arguments, he determined that the claim had no merit. When a zoning board grants a variance that affects the integrity of the zoning ordinance, it arrogates to itself the authority to zone that is vested in the municipality. In such cases, the municipality may challenge the action. Twp. of Dover v. Bd. of Adjustment of Dover, 158 N.J. Super. 401, 409 (App. Div. 1978).

The judge determined, however, that there was no evidence of an arrogation of authority. An arrogation occurs when "the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance." Id. at 412-13. The judge recognized that the zoning variance here would permit the construction of seventy-four units, some or all of which would replace destroyed units in an complex already containing 1100 units. He said, "I am absolutely convinced that there is not a scintilla of evidence except for the disagreement by the Council and the Planning Board with the findings of the Zoning Board of Adjustment . . . . There's just no evidence of arrogation of authority here. The record is [to the] contrary."

It is clear that the judge considered the claim on the merits and found that no reasonable fact-finder could conclude that the Zoning Board had arrogated to itself Council's authority to zone. Absent such an arrogation, Council could not challenge the variance. Id. at 408-09.

Our independent review of the record satisfies us that Judge Sweeney correctly decided this issue. We are convinced that the addition of seventy-four units, some of which were to replace damaged units, cannot "substantially alter the character of the district as that character has been prescribed by the zoning ordinance." Id. at 412-13. Were that the case, every zoning variance would be an arrogation.

The doctrine is intended to deal with variances exerting much more substantial effect on the integrity of the zone plan. Township of Dover, for example, involved a variance to permit a "cluster" development of "162 homes rather than the maximum of some 94 homes otherwise prescribed" on an undivided eighty-one- acre tract. Id. at 406. See also Twp. of N. Brunswick v. Zoning Bd. of Adjustment of N. Brunswick, 378 N.J. Super. 485, 488-89 (App. Div.) (involving the development of a four-story, eighty-five-unit apartment building in a zone permitting only single family homes with a density almost ten times that permitted by the zoning), certif. denied, 185 N.J. 266 (2005); Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 564 (App. Div. 1996) (involving variances that affected the entire tract and were based upon a view that the "present zoning of the tract is inappropriate"); Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 252-53 (App. Div. 1990) (involving variances encompassing entire zone to allow non-permitted use), certif. denied, 127 N.J. 325 (1991). In each of these cases, the impact of the zoning variance was much more substantial than is the effect of the variances sought by Berk & Berk. We agree that a variance of the scope sought by Berk & Berk cannot, as a matter of law, constitute the substantial alteration of the character of the district in which the development occurs that is necessary to support an arrogation claim.

Appellants assert in a footnote that whether arrogation occurs cannot be decided in the absence of a fully developed record. We disagree. The record was sufficiently developed to permit the judge to understand the nature of the district as it existed and the effect of the proposed alteration. Appellants do not suggest what additional information would be necessary to determine whether the variance substantially affects the character of the district.

III

Next, Council asserts that, having been barred from challenging the variance as an arrogation of its zoning authority, it should have been permitted to amend its complaint to challenge directly the grant of the variance by virtue of its ownership of property within 200 feet of the variance site. Judge Sweeney found no explanation for Council's failure to assert property-owner status originally and recognized that Council's position was being advanced adequately by Yelland. He therefore declined to permit an amendment to the municipality's pleadings.

Although amendments should be given freely in the interest of justice, R. 4:9-1, the decision to permit an amendment "'always rests in the court's sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998)). Since Council's failure to assert its claim timely was unexcused and its interests were otherwise protected, Judge Sweeney's decision was well within his discretionary limits.

IV

Finally, we turn to the issue that lies at the heart of these appeals, that is the allegation that Judge Sweeney erred by affirming the Zoning Board's grant of the use variance. That decision is governed by a well-developed body of law. A zoning board's decision on a variance application may be set aside only when "arbitrary, capricious, or unreasonable." Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002); New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999); Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

This standard stems from the recognition that local officials, who are familiar with a community's characteristics and interests, are best equipped to pass on variance applications. Kramer, supra, 45 N.J. at 296. Because of their knowledge of local conditions, boards must be allowed wide latitude in the exercise of their delegated discretion. Ibid. Therefore, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Board decisions "'are presumed valid [and] the party attacking [them has] the burden of proving otherwise.'" Cell S. of N.J., Inc., supra, 172 N.J. at 81 (quoting N. Y. SMSA Lt'd. P'ship. v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999)). A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Id. at 82 (citing Med. Realty Assocs. v. Bd. of Adjustment of N. Caldwell, 228 N.J. Super. 226, 233 (App. Div. 1988)). The standard of review is the same for both the Law Division and a reviewing court. Bressman v. Gash, 131 N.J. 517, 529 (1993). The trial court's legal rulings are not entitled to deference. Manalapan Realty, L.P., supra, 140 N.J. at 378.

Addressing the evidence before the Zoning Board, the judge first stated:

I cannot overlook, nor did the Board overlook the fact that there were . . . 1,100 plus apartments, 1,124, some of which had undergone some destruction as a result of a fire. The application here was to add 74. I forget exactly what the percentage is in connection with the overall complex, but it's under six percent, I believe. And the Board makes reference to that.

The judge looked at the reconstructed record that stated in capital letters across the top "BALANCE POSITIVE AND NEGATIVE IMPACTS." He determined that the Board considered both the positive and negative criteria by not ignoring the fact that there were 1124 apartments already on the site, which he considered important in determining whether it was particularly suited for seventy-four additional apartments. He concluded that there was substantial credible evidence in the record for that conclusion. He explained:

The complex is best described I think as a self-contained complex, which provides housing needs for this municipality and the region generally. It is not . . . taking up any additional space that could be used for other purposes for which the space was eventually zoned. It . . . adds very, very little to an already existing self-contained complex located in an area that is perhaps best suited or was best suited at the time that the complex was initially constructed.

Judge Sweeney concluded that the resolution contained a summary of testimony and a factual finding that apartments are not permitted in the zone, but that because there were 1100 units existing, the replacement of seventy-four could not detrimentally affect the zoning plan. He noted that the resolution found that the amended proposal would add seventy-four apartments and that Berk & Berk had offered to add sixteen moderate or low income units if requested by the Township. In addition, the judge noted that the site is particularly suited for the use in question due to the large number of existing apartments and the fact that new units would be scattered throughout the site and not concentrated in one area.

We agree with Judge Sweeney's analysis and application of the law. Although we recognize that the record contained gaps, we remain satisfied that it contained more than sufficient evidence to sustain the approval. Appellants' claims to the contrary are without sufficient merit to justify discussion in a written opinion, R. 2:11-3(e)(1)(D), (E), especially since they had the burden of demonstrating that there was insufficient evidence. Cell S. of N.J., Inc., supra, 172 N.J. at 81.

Accordingly, we affirm the judge's determination that there was substantial evidence in the record to support the Zoning Board's variance grant substantially for the reasons set forth by him in his November 20, 2003, oral opinion.

As to all three appeals, we affirm.

 

The variance also permitted construction of an additional sixteen units under certain circumstances relating to the use of those units for low income housing.

Appellants have filed a joint brief and appendix. Although the brief attributes some of the arguments to individual appellants, we have not distinguished among them for the sake of simplicity.

The application also sought a variance for an adjacent site. That variance was denied and is not the subject of this appeal.

The transcript contains numerous omissions designated as "inaudible."

Counterclaims and crossclaims were ultimately filed by Yelland and Council. For the sake of simplicity, we have not recited the complex procedural history of the pleadings, referring only to the issues presented to Judge Sweeney.

The amended complaint designated the ordinance as "Ordinance #19-2.12" but the proper designation is Ordinance 2000-24, amending Chapter 19, Section 2.12 of the Township Code.

(continued)

(continued)

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A-1309-04T1

June 14, 2007