DONALD NUCKEL v. BOROUGH OF LITTLE FERRY PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2699-08T32699-08T3

DONALD NUCKEL; NORTH VILLAGE I,

L.L.C.; and NORTH VILLAGE II, L.L.C.,

Plaintiffs-Respondents/

Cross-Appellants,

v.

BOROUGH OF LITTLE FERRY

PLANNING BOARD,

Defendant/Cross-Respondent,

and

THE GENERAL'S GROUP, L.L.C.

and FTA REALTY, L.P.,

Defendants-Appellants/

Cross-Respondents.

__________________________________

 

Argued October 14, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. L-5581-08.

Andrew T. Fede argued the cause for appellants/cross-respondents (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz,

attorneys; Mr. Fede, of counsel and on the brief).

Brian T. Giblin argued the cause for cross-respondent (Giblin & Giblin, attorneys;

Brian T. Giblin, on the brief).

Ira E. Weiner argued the cause for respondents/cross-appellants (Beattie Padovano,

attorneys; John J. Lamb, of counsel; Mr. Weiner

and Daniel L. Steinhagen, on the brief).

PER CURIAM

The parties appeal and cross-appeal from a trial court judgment entered following a trial on plaintiff's complaint in lieu of prerogative writs. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.

I

Defendant The General's Group ("General's") seeks to develop property in Little Ferry as a hotel. The site is in the B-H zone, in which a hotel is a conditional use. The property fronts on the Hackensack River and runs along Route 46. It is in the vicinity of the traffic circle at the juncture of Route 46 and Bergen Turnpike. Part of General's proposal included merging existing Lots 5, 8, 9 and 10 in Block 5.01 into two new lots, 8.01 and 8.02. General's proposed to place the hotel on Lot 8.02, which abuts Route 46; however, there is no direct access to the highway from Lot 8.02. General's proposed site plan showed a long driveway starting from Lot 8.02, traversing Lot 8.01, with access to and from Route 46 through a narrow corner of adjoining Lot 11. Lot 11 is owned by defendant FTA Realty ("FTA"), which is controlled by the same principals as those who control General's.

The minimum lot size in this zone is 80,000 square feet. Lot 11, which is only 30,223 square feet, is significantly undersized. There are two buildings on Lot 11, one of which is abandoned. The other is used as an auto body shop, which is a pre-existing, non-conforming use.

General's initially applied to the Little Ferry Planning Board ("Board") for site plan approval and certain variances for this development in 2002. It did not, as part of that application, seek site plan approval for the improvements that would need to be built on Lot 11, such as the curb cut, paving and island.

After the Board approved the project in 2003, plaintiff, a Little Ferry resident and property owner, filed an action in lieu of prerogative writs, challenging this approval. In 2006, the trial court upheld this approval, but remanded the matter to the Board to consider three questions.

The initial resolution adopted by the Board had included as a condition to its approval that General's break ground on the project within one year. The trial court struck down that condition because Little Ferry, in its governing ordinances, had not conferred upon the Board the authority to impose such a condition. The trial court directed the Board to determine if it would have approved the project absent that condition.

Further, when the Board originally approved the project in 2003, it included as a condition that General's obtain an easement from FTA for its proposed use of Lot 11. The trial court concluded that condition was inadequate and that the Board should have required approval of a site plan application showing the proposed use of Lot 11 as a condition of its approval. It remanded the matter to the Board to consider such an application; plaintiff had argued to the trial court during the 2006 litigation that such a use of Lot 11 would require variance relief, but the trial court specifically refrained from deciding whether any variances would indeed be required.

The third issue that the trial court remanded to the Board was consideration of site plan approval for a walkway along the riverfront portion of the site. The property is located within the Hackensack Meadowlands District, and the New Jersey Department of Environmental Protection requires that improvements within the District include a walkway with public access. Such a walkway had not been included in General's original application.

Plaintiff appealed to this court, but we affirmed in an unpublished opinion. Nuckel v. Borough of Little Ferry Planning Bd., No. A-5874-05 (App. Div. Sept. 5, 2007). The Supreme Court denied plaintiff's petition for certification. 193 N.J. 277 (2007).

In June 2007, General's filed two revised applications with the Board, showing the location of the proposed walkway and seeking final site plan approval for the driveway access through Lot 11. Remand proceedings before the Board were protracted for a variety of reasons. In May 2008, the Board found that it would have approved the original application absent the one-year condition the trial court had earlier set aside. It also approved the revised applications with respect to the walkway and Lot 11 access.

In July 2008, plaintiff filed a second action in lieu of prerogative writs, challenging this 2008 approval. The trial court upheld the Board's resolution in terms of the riverfront walkway and the Board's finding with respect to the one-year condition. It reversed, however, the approval with respect to Lot 11. It concluded that use of Lot 11 to obtain access to the hotel required both a use variance and a variance to permit expansion of a non-conforming use. According to the trial court, the application was defective because it did not seek these variances. The parties have appealed and cross-appealed from the trial court's judgment. General's contends that the trial court erred when it held that the proposed use of Lot 11 required variance relief. Plaintiff in his cross-appeal contends the trial court erred when it upheld the Board's determination that the earlier vacation of the one-year condition did not affect its approval of this project and further erred when it granted site plan approval to the proposed walkway.

II

The action of a local board such as defendant Board is presumed to be valid, and a court will not overturn its determinations unless they are arbitrary, capricious or unreasonable. Toll Bros. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008). A party challenging such board action has the burden of showing that it was arbitrary, capricious or unreasonable. Ibid. When the determination under consideration, however, is a legal determination, for example, interpretation of an applicable ordinance, a court reviews the matter de novo. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). See also, Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993) (declining to defer to planning board in its interpretation of municipal zoning ordinances because "[a]lthough courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law.").

Defendants contend that the trial court did not afford the proper deference to the Board's decision to approve General's application. They cite cases such as Sica v. Bd. of Adjustment of Wall, 127 N.J. 152 (1992), in which the Court noted that a reviewing court should afford a presumption of validity to a board's decision granting a variance. That principle, however, does not govern the analysis of this matter. Here we are dealing not with a decision to grant a variance but, rather, with a decision that no variance was needed. That is a question of law, and the trial court was not obligated to defer to the Board's view on this issue.

III

We turn first to the question whether the proposed use of Lot 11 to obtain access to Lots 8.01 and 8.02 represents an expansion of a non-conforming use, necessitating a use variance. The trial court decided that it did; we are unable to agree.

We have already noted that Lot 11 is significantly smaller than required by Little Ferry's current zoning. Further, the auto body shop on Lot 11 would not be permitted under Little Ferry's present zoning and is a non-conforming use. In the view of the trial court, using Lot 11 to obtain access to the hotel driveway will decrease the buffer zone between the non-conforming body shop and the adjacent property. The trial court concluded that the effect of such a reduced buffer zone was an expansion of a non-conforming use. The power to authorize the expansion of a non-conforming use rests exclusively within the jurisdiction of a zoning board of adjustment. Avalon Home & Land Owners v. Borough of Avalon, 111 N.J. 205, 211-12 (1988); Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 330-31 (App. Div. 2003). The trial court thus concluded that defendant Board, which was acting as Little Ferry's Planning Board when it reviewed the application, lacked jurisdiction to grant site plan approval in the absence of a variance approving such expansion of a non-conforming use.

The trial court based its conclusion that a decrease in the buffer zone would result in an expansion of a non-conforming use on our opinion in Razberry's Inc. v. Kingwood Township Planning Bd., 250 N.J. Super. 324 (App. Div. 1991). We agree with defendants, however, that Razberry's is distinguishable.

In that case the defendant was the contract-purchaser of 5.17 acres of an 8.17 acre parcel located in a commercial zone. The portion the defendant proposed to purchase contained the seller's residence, a non-conforming use. Id. at 325. The defendant submitted an application to the Planning Board to divide the 5.17-acre lot into two lots, one of which would contain the seller's residence, the other a commercial use. Id. at 325-26. The result of the proposed subdivision would be to leave the residence on a three-acre parcel, while the minimum lot size in this commercial zone was five acres. Ibid.

We held that it was insufficient for the contract purchaser merely to obtain subdivision approval and a hardship variance from the Planning Board. Id. at 326. When a lot with a nonconforming use is subdivided, the owner must obtain a use variance for expansion of the nonconforming use in order to continue that use. Id. at 326-27. We held:

[A] reduction in the size of the property occupied by a nonconforming use, with a resulting decrease in the buffers between conforming and nonconforming uses, is just as likely to increase the conflict between a nonconforming use and surrounding conforming uses as an expansion of the facility containing the nonconforming use or an intensification of that use. Therefore, a reduction in the size of the property occupied by a nonconforming use may result in a substantial increase in the nonconformity.

[Id. at 327.]

General's argues that the trial court's conclusion that Razberry's controlled this situation was erroneous because the proposed use of Lot 11 for access purposes would result in such a de minimis expansion of Lot 11's non-conforming nature that Lot 11 would remain essentially unchanged. Plaintiff responds that Lot 11 is already substantially smaller than permitted and creation of the proposed easement will further reduce the usable portion of Lot 11, adding to its non-conformity. Plaintiff also stresses that the volume of anticipated traffic entering and departing the hotel represents a significant expansion of a non-conforming use.

The issue that must be resolved, however, is whether the expanded use from the reduced buffer zone can fairly be characterized as a de minimis expansion of the auto shop, which is the non-conforming use. The Supreme Court in Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 316 (1980), recognized that there are instances in which the change in a pre-existing, non-conforming use can be "so negligible or insubstantial that it does not warrant judicial or administrative interference." We are satisfied that the proposal to use one small corner of Lot 11, at a point far removed from both the auto body shop and other property owners, as an access route for the hotel's driveway can fairly be characterized as such a de minimis expansion as not to require an application for a use variance.

There will be no expansion of the business of the auto body shop as a result of this access easement. The auto body shop will continue as before, with no intensification of its use. The access easement, moreover, will not increase traffic to the auto body shop because the proposed driveway will have no curb cuts permitting such access. "[T]o determine whether an activity constitutes the expansion of a nonconforming use, we apply a qualitative test, and consider the intensification of the nonconforming use as a relevant factor." Conselice, supra, 358 N.J. Super. at 335.

Such a qualitative approach requires consideration of the record as a whole, rather than a narrow focus on the numerical insufficiency of Lot 11's square footage. Viewed from that broader perspective, we agree with defendants that the driveway access would not result in such an intensification of the auto body shop use that would necessitate an application to the zoning board of adjustment for a use variance. We thus consider it unnecessary to address General's argument that Razberry's, supra, was wrongly decided.

IV

The trial court also concluded that defendants were required to apply for a use variance because use of Lot 11 for driveway access would place two primary uses on one lot, which is zoned for a single use. According to the trial court, the driveway access would take on the character of the use with which it was associated, the hotel. In the view of the trial court, the driveway could not be considered an accessory use because it did not serve the purposes of the auto body shop. The trial court concluded that this would result in Lot 11 having two principal uses, the auto body shop and the hotel while the Little Ferry zoning ordinance permitted only one principal use in that zone. This, held the trial court, required that defendants apply for a use variance to permit a hotel on Lot 11.

In support of its conclusion, the trial court relied largely on our decision in Financial Services v. Zoning Bd. of Adjustment of Little Ferry, 326 N.J. Super. 265 (App. Div. 1999), which also involved consideration of Little Ferry's zoning ordinances. In that matter, a gas station, which was a non-conforming use, was located on a non-conforming lot. Id. at 267. The property also held another structure, slightly more than 500 square feet in size, which had originally been intended to be used as a food mart but had since been used for storage in connection with the business of the gas station. Id. at 269. The lessee operating the gas station sold snacks from a kiosk also located on the site. Ibid. The plaintiff proposed to renovate the second structure on this undersized lot and use it for a check-cashing business and an ATM machine. Ibid. The Board denied the application for a use variance, and the plaintiffs appealed. Id. at 272.

We rejected the plaintiffs' contention that the check-cashing business was an accessory use to the existing gas station. Id. at 273. "The proposed commercial operation is not only not subordinate to the gas station use and is not of minor significance, but it is also not a use that has any common, habitual, or long-standing association with a gas station. Its failure to qualify as an accessory use makes it a principal use." Id. at 274.

We did not rest our decision solely on that, however. We noted that the gas station itself was a non-conforming use on a non-conforming lot because the Little Ferry ordinance only permitted gas stations as part of regionally-oriented shopping centers. Ibid. We also noted that approval of the application would have resulted in three uses on this undersized lot and that it posed significant traffic hazards.

In our judgment, there are significant distinctions between the present matter and the situation we considered in Financial Services. Although we understand the trial court's analytical view that this driveway access on Lot 11 had to be anchored to something, and that the most logical point was the hotel it was ultimately to service, we consider it unwarranted to require an application for a use variance to permit a hotel on Lot 11. From our review of the site plans, it is apparent that only a very small portion of the driveway will be placed on Lot 11, and that that portion occupies only a very small corner of Lot 11; the fundamental use of Lot 11 remains unchanged by this placement of a curb cut and a portion of a dividing island for two lanes of traffic entering and leaving the hotel.

Further, we understand from our review of the record that it is not feasible to place an entry to the hotel at another location. Route 46 is elevated for a portion of its path along the borders of Lots 8.02 and 8.01.

Several cases have discussed the nature of a driveway in connection with property having both residential and commercial features. In Angel v. Bd, of Adjustment of Franklin, 109 N.J. Super. 194, 196 (App. Div. 1970), the plaintiffs operated a trailer park as a non-conforming use. It had only one driveway, providing entry and egress onto Route 24. Ibid. The plaintiffs purchased two lots to the rear to construct a new driveway to provide an alternate entrance and exit. Ibid. Their application for a use variance for this driveway was denied. Id. at 197. We agreed with the local board that the driveway "constituted an accessorial use serving a nonconforming use" and took on the character of the principal use. Id. at 197-98. We affirmed the decision of the board which denied the variance, citing the impact of the increased traffic on a residential neighbor. Id. at 199.

In Beckmann v. Twp. of Teaneck, 6 N.J. 530 (1951), however, the Court indicated that a driveway need not necessarily take on the character of the principal use it served. The Court noted that "[A] driveway in itself is neutral. It is neither business nor otherwise. It takes color from the uses permitted by the zoning ordinance of the lands in the area." Id. at 536.

Here, we consider this access point to be essentially "neutral." It does not permit what would otherwise be prohibited. Absent this access point, moreover, safe entry and egress to and from Route 46 is highly problematic.

V

At one point during the proceedings before the Board, as it was considering the site plan application with respect to access through Lot 11, the following colloquy occurred:

[Board Member]: Maybe they can do some greenery in that other end near the entrance to brighten up the area where it comes in.

[General's counsel]: Certainly you can ask but - -

[Board vice chair]: That's not part of what you're looking for - -

[Board counsel]: This is a very narrowly focused presentation. It's just that issue of ingress and egress to the site. And basically it's for purposes of creating a complete record as to that portion of the application. So it's I understand your question. [sic] But that's really not part of the record that he would need to be creating this evening.

Plaintiff argued to the trial court that the attorney improperly prevented the Board from giving full consideration to the site plan application, and the trial court agreed. Defendants argue it erred in this regard.

Plaintiff argues that because Little Ferry Ordinance 134-68(b) requires the Board to take into account the public health, safety and welfare, the comfort and convenience of the public and residents of the neighborhood when issuing building permits for conditional uses, of which a hotel is one, the Board has an obligation to determine such things as traffic, fire protection, parking, illumination, landscaping, and drainage issues. Plaintiff argues that the Board's attorney "improperly chilled" members of the Board from considering appropriate site plan issues.

A planning board considering an application for site plan approval is charged with the responsibility to review, among other considerations, the vegetation, landscaping, signage, lighting and screening devices that are proposed to be included. N.J.S.A. 40:55D-7. While many issues with respect to the construction of this access point onto Route 46 fit within the State Highway Access Management Act, N.J.S.A. 27:7-91 and the State Highway Access Management Code, N.J.A.C. 16:47, the Little Ferry board still had the responsibility to review the site plan with respect to those issues not preempted by the statute and its implementing regulations.

Although it would appear that there was no intent to prevent full consideration by the Board (certainly General's interposed no objection to the topic), merely an intent to focus the Board's discussion on the primary issues, we can perceive no reasoned basis for disagreeing with the trial court's conclusion that the remark led to an arbitrary, capricious and unreasonable result because the Board never gave full consideration to the entirety of the application for site plan approval. The matter must be remanded to the Board for such consideration.

VI

A

We turn now to plaintiff's cross-appeal. Plaintiff contends that General's application for site plan approval for the driveway access on Lot 11 was fatally defective because it never proved that the auto body shop on Lot 11 was in existence when Little Ferry adopted the applicable zoning ordinance, an essential element for it to qualify as a pre-existing, non-conforming use. Plaintiff urges that if the auto body shop was not in existence when the zoning provisions were adopted, approval of the site plan would, in effect, be approval of an expansion of an illegal use. Defendants respond that they are not seeking to expand the use of the auto body shop or to make material changes to the use of Lot 11.

Plaintiff's argument in this regard rests upon Razberry's, supra, and in our judgment does not require much further analysis or discussion. We have already set forth our reasons for deeming this use of Lot 11 so de minimis as not to trigger the considerations we dealt with in Razberry's.

B

Plaintiff's principal argument on appeal is that the trial court erred when it held that there was no requirement that members of defendant Board who had not participated in the original 2003 approval certify that they had read the transcripts of those earlier hearings before being allowed to vote on the question of whether the application would have been granted in the absence of Condition 13. The trial court rejected this argument, finding that it had not mandated that the Board members read those transcripts before deciding this question and that they had sufficient "tools" to answer the question without the transcripts.

We are unable to accept the trial court' analysis. The issue, as we perceive it, is not whether the trial court in its earlier decision directed members of the Board to read these transcripts before voting on the question but, rather, whether the law required they do so. In our judgment it did.

We reach this conclusion for several reasons. The resolution passed by the Board in 2003 concluded with this specific provision:

BE IT FURTHER RESOLVED that the relief granted to the applicant is specifically made subject to any conditions referred to herein. In the event any condition is held to be invalid, unenforceable, or unlawful, the entire approval shall be unenforceable. It is the intent of the Board that the relief granted herein not be approved if any condition is invalid, and that the conditions are not severable from any variances or relief granted herein.

We can only conclude from this provision that when the trial court set aside Condition 13, the result was to render unenforceable the balance of the approvals. In that posture, the Board was called upon to consider the entirety of the application anew.

N.J.S.A. 40:55D-10.2 provides in pertinent part:

A member of a municipal agency who was . . . not a member of the municipal agency at that time, shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however that such board member has available to him the transcript . . . of all of the hearings from which . . . he was not a member and certifies in writing to the board that he has read such transcript . . . .

If the Board members were not familiar with the evidence presented both in support of the application and in opposition to it in 2003, they could not reach a reasoned determination on the question of whether Condition 13 was a critical element of the decision to approve the application. The remedy for failure to read the transcripts is a remand to the "current Board members to deliberate and revote, with those who have not done so, reading the transcript or listening to the tape of any meeting or meetings they may have missed, providing their certification and then deliberating and voting on the application as well." Schmidhausler v. Planning Bd. of Lake Como, 408 N.J. Super. 1, 14 (App. Div. 2009).

We thus reverse that portion of the trial court order which upheld the decision of the Board to proceed in 2008 without reading the earlier transcripts. The matter must again be remanded to the Board to correct that procedural deficiency.

C

Plaintiff contends that the actions of the defendant Board were fatally defective because the Board did not provide notice in accordance with the Open Public Meeting Act, N.J.S.A. 10:4-6 to -21 ("OPMA") and the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 ("MLUL").

This portion of plaintiff's argument requires that we set forth certain additional facts. The first date scheduled for the remand proceedings was January 23, 2008. That meeting could not proceed, however, because notification had only been sent to one newspaper, The Record, not the two required by the OPMA. N.J.S.A. 10:4-8, 10:4-9. Notification had been provided in accordance with the MLUL to property owners within 200 feet of the lot lines.

The next meeting was held on February 6. That meeting did not take place, however, because, although notification had been sent both to The Record and to The Star Ledger, the notice addressed to The Star Ledger stated on the cover sheet "Do not publish." The meeting was carried to March 5, 2008.

When the Board reconvened on March 5, it was learned that The Star Ledger had failed to publish the requisite notice, although it had received a timely request to do so. Plaintiff agreed, however, that the meeting could continue.

According to plaintiff, the Board improperly permitted defendants to "carry" the MLUL notice, thus avoiding the necessity of republishing or remailing notice. Plaintiff also complains that the Board did not send out new notices when its original publication notice did not comply with the OPMA. Lack of proper notice is a jurisdictional issue, meaning the Board would not have jurisdiction to grant an application. Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 236 (App. Div. 1996).

Adequate notice under OPMA means advance notice of at least forty-eight hours that is prominently displayed, delivered to at least two newspapers in the area, and filed with the municipality's clerk. N.J.S.A. 10:4-8(d). Unless there is adequate notice (absent certain exceptions not applicable here) the Board cannot hold a meeting. N.J.S.A. 10:4-9(a). Under the MLUL "[p]ublic notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality." N.J.S.A. 40:55D-12(a). When there is a remand, notice must be given as if for the original application.

We disagree with plaintiff's analysis. At the March 5, meeting (the first one where the applications were actually reviewed) OPMA notice was handled correctly, with notice sent to two newspapers. Additionally, even if there was an OPMA problem, suit must be filed within forty-five days, which was not done here as the complaint was filed approximately three months after the final Board meeting on the remand application.

Second, the MLUL notices to owners within 200 feet were sent. And notice of the subsequent meetings was proper pursuant to OPMA. Thus, if the party received notice pursuant to MLUL and attended the meetings lacking OPMA notice, the party would have received oral notice of the continuance. If a party did not attend the meeting under MLUL notice then the party would have been properly noticed under OPMA.

Plaintiff contends that MLUL notice, requiring that all parties owning property within 200 feet of the subject property must receive written notice from the applicant, was defective. MLUL notice was not provided for months before the substantive hearings finally began in March 2008. However, the first meeting did have proper notice to the parties within 200 feet, even though OPMA notice was incorrect. The Board then properly carried the meeting over because of the OPMA issues. Any interested parties who attended that meeting would have been on notice of the later meeting because the Board publicly carried it over in the presence of those individuals.

Furthermore, at the meetings themselves, neither Nuckel nor plaintiff's counsel ever objected to the Board setting a date to carry over the application.

D

Plaintiff also contends that the proceedings were fatally tainted by a conflict of interest.

There are two aspects to plaintiff's contention with respect to a conflict of interest. One relates to the engineer for the Board, the other to two members of the Board.

When the remand proceedings ultimately got under way, plaintiff's attorney objected to the Board utilizing the engineering firm of Job & Job to review defendants' application because this firm had represented defendants' principals in connection with other development applications. Faced with this objection, the Board, upon advice of counsel, retained a new engineering firm, which submitted its report approximately one month after plaintiff raised the question. Plaintiff contends this was insufficient.

Plaintiff also objected to the mayor of Little Ferry and a council member participating in the Board's deliberations on this application. Plaintiff has been involved in significant litigation against the municipality, specifically challenging whether the municipality was complying with its obligation to provide affordable housing. The borough's mayor and council had been defendants in that litigation. Plaintiff was successful in this litigation and obtained a builder's remedy, permitting him to build a housing complex larger than would otherwise be permitted under Little Ferry's ordinances. Plaintiff contends that the mayor and council member would be unable to judge this application fairly because they would be biased against plaintiff because of the earlier litigation.

From our review of this record, we are satisfied the trial court correctly handled both these contentions. The Board acted promptly and properly once the issue of a potential conflict of interest with the engineer was raised. It retained a new engineer, who reviewed defendants' application and prepared a new, wholly independent report for the Board to consider. We also agree that no reasonable member of the public would have any grounds to believe that plaintiff's prior litigation against the borough unfairly tilted the proceedings in favor of defendants. With respect to the question of conflict of interest, we affirm, substantially for the reasons given by the trial court in its oral opinion of December 15, 2008.

E

Plaintiff raises three remaining issues on its cross- appeal, none of which requires extended discussion. We earlier noted that one of the issues that the trial court remanded to the Board in 2006 was the necessity to consider a site plan for the needed walkway on the river side of the property. Plaintiff contends the Board should not have approved the walkway since the site plan that was submitted did not provide for the walkway extending northward to connect to adjoining property. We agree with the trial court and defendants; the Board's decision in this regard was not an abuse of its discretion.

Plaintiff also argues that the Board should have required defendants to include as part of their site plan application modifications to the Route 46 traffic circle that had been proposed by the New Jersey Department of Transportation ("DOT"). DOT, however, had made no final determination with respect to the nature of the modifications it would require. In the absence of such a final determination, any action by the Board in this regard would have been entirely speculative.

Finally, plaintiff contends the trial court erred when it rejected plaintiff's contention that defendants needed a bulk variance to place the access point on Lot 11 because Lot 11 does not meet the dimensional standards of the current Little Ferry zoning ordinance. As we have indicated earlier, in our judgment, defendants were not seeking to develop Lot 11. Accordingly, no bulk variance was needed.

The order under review is affirmed in part and reversed in part, and the matter is remanded for further proceedings.

 

There are three named plaintiffs -- Donald Nuckel and two limited liability companies of which he is the principal. For the balance of this opinion, we shall refer to plaintiff in the singular.

The parties refer to that provision as "Condition 13." We shall similarly refer to it in the balance of this opinion.

Little Ferry has authorized the Planning Board to exercise the powers of a board of adjustment; the statute authorizing this consolidation of function specifies members of such a board who may vote on applications for use variances and those who may not. N.J.S.A. 40:55D-25(c).

(continued)

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April 21, 2010