THE BENEFITS OF OPEN SPACE
THE NJ OFFICE OF STATE PLANNING AGREES:
“Many communities view the capture of non-residential ratables as an important means of stabilizing or even reducing local property tax rates. While this may be true for some communities for short periods of time, the tax implications of non-residential ratables, particularly retail, are often considerably more complex than anticipated. New retail development… require(s) outlays for public services such as police, fire, courts, road maintenance, and traffic control. In addition, the availability of retail services often stimulates residential development nearby, requiring additional services”.
Comparing towns with a high percentage of commercial ratables to less commercially developed communities, the study finds that “ratable rich” towns, contrary to expectations, have found no tax relief. The 13 municipalities that ranked highest in the addition of ratables pay 57 percent of the local taxes. Despite adding $4.2 billion in commercial and industrial ratables over 20 years, these communities did not see a reduction in their costs of running local government. Also, contrary to expectations, the tax rate for residential owners in ratable rich communities did not go down.
There are several reasons for these findings. The courts have increasingly ruled in favor of companies that appeal for tax relief. In addition, in five to ten years, employees move in and require services. Traffic and pollution increase so roads need to be widened and local quality life deteriorates leading to lowered property values. Over time, commercial real estate is depreciated while residential real estate increases in value, changing the balance of property tax assessments. Also, office buildings don’t change hands as often as houses do, so their taxable value comes close to inflation.”
Filed under Open Space, Uncategorized | Comment (0)OCAPA TAKING CASE TO THE SUPREME COURT
About 10 A.M. May 25, 2010 the Old Corlies Avenue Preservation Alliance (OCAPA) learned of the Appellate Court’s decision in their case against the Neptune Township Board of Adjustment and 1019 Old Corlies Road LLC regarding the Board`s approval of a car wash / oil change / lube facility at 1019 Old Corlies Avenue. Unfortunately, the Court`s decision was against OCAPA.
In so doing the Court sanctioned:
- The use of coerced, inaccurate and untruthful testimony by applicants seeking approval of major projects.
- The failure of the BOA to hold the applicant accountable for the untruthful and inaccurate testimony by not rescinding approval when the flawed testimony was discovered.
- Quid pro quo deals wherein the applicant`s project approved in exchange for unnecessary and damaging free infrastructure (in this case, 610 feet of unnecessary storm sewer with multiple inlets which would damage the properties along this historic roadway and inconvenience them and the large numbers of people that use it and live along the detour routes).
- The BOA`s disregard for the laws, rules and regulations (both the State`s and the Township`s) that have the purpose of protecting the stream corridors and the physical, chemical and biological integrity of the waters of the State. To wit, the BOA waived the requirement that the applicant prepare an environmental impact statement (EIS), as required by its own Ordinance 04-23 for all major projects, to assess the impact the storm water from the enlarged catchment area (approximately 14 acres with many diverse existing and potential pollutants) upon, among other things, Shark River Brook which is classified FW-2, Trout Maintenance, Category I by the State. The BOA disregarded the value of such an EIS and didn`t even consider the existing more environmentally sound, more publicly acceptable and less damaging alternative storm water connection only 75 feet from the site downgrade in the dirt shoulder along Route 33 that empties into an approximately two acre storm water detention / infiltration basin on Wells Brook, which, although important, has a lower FW-2 classification.
- The use of a markedly more environmentally damaging alternative in the handling storm water so as to have a profound detrimental effect upon Shark River Brook, it’s downstream estuary, the area’s water supply and Monmouth County’s Shark River Park.
While it is understandable that the Appellate Court has rules that limit their consideration to only those matters considered in the lower court, those rules preclude its consideration of particularly relevant factors that would provide for a more well-founded decision. While one could quibble about which of the above points were included in the considerations of the lower court, there can be no doubt that the matters pertaining to storm water were.
As such, and after failing on a “Motion to Reconsider”, our attorney has filed our case with the Supreme Court. We trust that this court will not give our case short shrift as it appears the lower courts have done when arriving at their decisions. What is at stake here, in part, is whether the public has to continue putting up with the high-handed and unscrupulous ways of the BOA or will the court act to correct them?
The Old Corlies Avenue Preservation Alliance
READ BELOW OCAPA’s CASE AS FILED WITH THE SUPREME COURT OF NEW JERSEY:
SUPREME COURT OF NEW JERSEY
Docket Number 066438
OLD CORLIES AVENUE PRESERVATION ALLIANCE
and JOYCE B. PYLE,
Petitioners,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NEPTUNE
and 1019 OLD CORLIES ROAD, LLC,
Respondents. :
:
: Civil Action
:
: PETITION FOR
: CERTIFICATION TO THE
: SUPERIOR COURT,
: APPELLATE DIVISION
:
: Sat Below:
:
: Hon. Phillip S. Carchman
: Hon. Victor Ashrafi
:
TO: The Honorable the Chief Justice and Associate Justices of the Supreme Court of New Jersey
Submitted by:
R. William Potter
Peter Dickson
Potter and Dickson
194 Nassau Street
Princeton, NJ 08542
Telephone: (609) 921-9555
Fax: (609) 921-2181
Attorneys for the Petitioners:
Old Corlies Avenue Preservation Alliance and Joyce B. Pyle
Table of Contents
Page
I. PRELIMINARY STATEMENT 1
II. STATEMENT OF THE MATTER INVOLVED 2
III. QUESTIONS PRESENTED 3
A. Whether the Appellate Divisionís rejection of the appellantis timely filed Motion for Reconsideration was clearly in error or a manifest injustice to the appellants and to the detriment of the general public interest? 3
B. Whether a Zoning Board of Adjustment may grant approvals of variances in the absence of a filed stormwater management plan for the development demonstrating proper stormwater management in compliance with the Township ordinance, Township stormwater plan and New Jersey Department of Environmental Protection (ìDEPî) regulations? 3
C. Whether in the absence of a formal stormwater plan, the Developer can be made to agree to install a lengthy and disruptive stormwater management piping system with inlets more than 600 feet along Old Corlies Avenue? 4
D. Whether the Developerís stormwater agreement was an ìunlawful exactionî or improper ìquid pro quoî which requires reversal? 4
E. Whether the Law Division and Appellate Division have created a new category for the issuance of a ìuse variance,î that a prohibited use should be approved because of its alleged ìsimilarityî to other uses in the general area of the site, contrary to the ruling of this Court in Medici v. BPR Co., 107 N.J. 1 (1987)? 4
IV. SUMMARY OF PROCEDURAL HISTORY 4
V. SUMMARY OF PERTINENT FACTS 7
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VI. ARGUMENT 8
A. No recent Supreme Court decision has articulated clear standards for Appellate Division review of motions for reconsideration 8
B. By any reasonable measure, pursuant to Rule 2:11-6, reconsideration should have been granted to correct a clear error or to prevent a manifest injustice 11
C. The Appellate Division has created a new criterion for the grant of use variances, namely, that ìthe proposed use is similar to other uses in the Highway 33 corridor near the subject property:î 14
CONCLUSION 17
Attached Documents
Notice of Petition filed July 2, 2010 in the Supreme Court P 1a
Notice of Petition filed July 2, 2010 in the Appellate
Division P 4a
Appellate Division Order on Motion issued June 23, 2010 P 7a
Appellate Division Decision May 25, 2010 P 8a
Law Division Decision September 29, 2008 P 15a
Transcript of Hearing before Judge Lawson September 29,
2008 (excerpts) P 43a
Trial Brief of Plaintiffs dated August 19, 2008
(excerpts) P 48a
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Table of Authorities
Page
STATUTES
N.J.S.A. 40:55D-93, -94 12
CASES
*Darel v. Pennsylvania Mfrs. Assín Ins. Co.,
114 N.J. 416, 426 (1989) 1, 9
*In re Stormwater Mgmt. Rules, 384 N.J. 451 (App. Div.),
certif. denied, 188 N.J. 489 (2006) 12
*Medici v. BPR Co., 107 N.J. 1, 4-5 (1987) 14, 15
Nunziato v. Edgewater Planning Board, 225 N.J. Super. 124,
129-130 (App. Div. 1998) 13
*Polidori v. Kordys, Uzzio & DiTomasso, 228 N.J. Super. 387,
394-395 (App. Div. 1988) 11
Pond Run Watershed v. Tp. of Hamilton Zoning Bd.,
397 N.J. Super. 335, 358-360 (App. Div. 2008) 13
*Saadala v. E. Brunswick Zoning Bd., 412 N.J. Super. 541
(2010) 16
Save Hamilton Open Space v. Tp. Planning Board,
404 N.J. Super. 278, 283 (App. Div. 2008) 12
Shore Builders v. Tp. of Jackson, 199 N.J. 449 (2009) 13
Stop & Shop Supermarket Company v. Board of Adjustment of Springfield, 162 N.J. 418 at 431 (2000) 16
Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 140,
179 n. 1 (1979) (concurring opinion) 1, 9
*Swanson v. Planning Board of Hopewell, 149 N.J. 59, 66
(1997), concurring opinion 13
Township of Marlboro v. Pl. Board of Holmdel,
279 N.J. Super. 638, 643-644 (App. Div. 1995) 13
-iii-
RULES
R. 2:11-6 2, 8, 11
REGULATIONS
*N.J.A.C. 7:3-1.1 to 6.3 12
-iv-
I. PRELIMINARY STATEMENT:
Among the more important issues in modern land use regulation are stormwater controls, illegal ìquid pro quos,î and satisfaction of criteria for issuance of ìuseî variances. These issues are intertwined in this petition along with a fundamental issue of appellate jurisprudence that has to date largely escaped Supreme Court attention or even Appellate Division articulation. The latter is the seemingly mundane matter of standards a reviewing court should apply when it adjudicates a motion to reconsider. In this case, the Appellate Division rejected a motion for reconsideration that identified with specificity the errors on which the appellate courtís opinion was based. This rejection was handed down in great haste; the motion was filed June 4, 2010, submitted to the court on June 10, 2010, and even before the respondents had replied, the rejection was handed down June 23, 2010. See Petition Appendix Pa7.
Based on our research, it appears that the Supreme Court has never articulated any standards for appellate courts when reviewing reconsideration motions. The Court has expressed the adage that ìë[a]s has been observed elsewhere, ë[c]onfession of error is good not only for the soul but for an accurate view of the law.íî Darel v. Pennsylvania Mfrs. Assín Ins. Co., 114 N.J. 416, 426 (1989), quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 140, 179
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n. 1 (1979) (concurring opinion). However, this general concept that it is ìgoodî to admit error is insufficient; it merits both definition and content, especially now, as appellate courts struggle to keep up with expanding caseload and may be increasingly prone to reject even meritorious motions to reconsider. This factor makes it all the more vital for the courts to have clear standards if the reconsideration rule, R. 2:11-6, is to have content and meaning in practice. Courts and judges should be receptive to requests to reconsider when a party submits specific evidence of error on an important issue in controversy ñ as here. When reconsideration is denied in a perfunctory manner, the public may fairly question whether justice is served.
II. STATEMENT OF THE MATTER INVOLVED:
This case is an action ìin lieu of prerogative writsî by the Old Corlies Avenue Preservation Alliance and Joyce B. Pyle (ìOCAPAî) to the Neptune Township Zoning Board of Adjustment (ìBOAî) grant of ìuseî and other variances, as well as the BOAís directive to the applicant developer of a combination carwash, oil change and lubrication facility, called 1019 Old Corlies Road, LLC (ìDeveloperî), to install an oversized, lengthy and misplaced stormwater management system through the Old Corlies Avenue neighborhood, even though the Developer did not present a plan for the stormwater system and despite the absence of evidence to show
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any need for this massive ìoff tract improvement,î based on an off the record arrangement between the Devloper and the Township that smacks of an unlawful exaction or ìquid pro quo.î
On appeal the Superior Court Law Division upheld the BOA approval, which in turn was affirmed by the Appellate Division which declined to hear or review any aspect of the stormwater challenge on the clearly erroneous basis that the issue was not raised below and was not of sufficient public importance in any event. Thereafter, OCAPA filed a motion for reconsideration which identified the errors, and cited the instances of record where these issues were raised below. The Appellate Division hastily denied the motion without opinion.
III. QUESTIONS PRESENTED:
A. Whether the Appellate Divisionís rejection of the appellantís timely filed Motion for Reconsideration was clearly in error or a manifest injustice to the appellants and to the detriment of the general public interest?
B. Whether a Zoning Board of Adjustment may grant approvals of variances in the absence of a filed stormwater management plan for the development demonstrating proper stormwater management in compliance with the Township ordinance, Township stormwater plan and New Jersey Department of Environmental Protection (ìDEPî) regulations?
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C. Whether in the absence of a formal stormwater plan, the Developer can be made to agree to install a lengthy and disruptive stormwater management piping system with inlets more than 600 feet along Old Corlies Avenue?
D. Whether the Developerís stormwater agreement was an ìunlawful exactionî or improper ìquid pro quoî which requires reversal?
E. Whether the Law Division and Appellate Division have created a new category for the issuance of a ìuse variance,î that a prohibited use should be approved because of its alleged ìsimilarityî to other uses in the general area of the site, contrary to the ruling of this Court in Medici v. BPR Co., 107 N.J. 1 (1987)?
IV. SUMMARY OF PROCEDURAL HISTORY:
In August of 2006, the Developer (ì1019 Old Corlies Road, LLCî) applied for multiple variances with the Neptune Township Zoning Board of Adjustment (ìBOAî) to demolish an existing historic residential structure and to construct a combination car wash and automotive service (oil lubrication and oil change) full-service facility. None of the proposed uses are permitted in the zone. Public notice and hearings were held on March 7, May 16 and July 18, 2007. Although Developer presented five witnesses, no evidence was proffered to demonstrate that the Developer had proposed a
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stormwater management plan that complied with the Township stormwater ordinance or the Townshipís stormwater plan or recently promulgated regulations of the DEP. Indeed, no such plan was presented or placed into evidence or found to be complete and compliant. Nevertheless, by a 5-2 vote, the BOA granted the variances as requested despite the testimony and over the objections of Mrs. Pyle and residents who organized into the Old Corlies Avenue Preservation Alliance (ìOCAPAî).
On November 2, 2007, OCAPA filed a complaint in lieu of prerogative writs in the Law Division to contest the BOA actions. Following some preliminary motions and the filing by OCAPA of an amended complaint, oral argument was held on September 29, 2008 (Petition Pa43) and the written opinion issued that day by the Honorable Lawrence M. Lawson, A.J.S.C., (Petition Pa15) followed by his issuance of a judgment on October 14, 2008 upholding the Board on all counts. Petition Pa13.
On November 19, 2008, OCAPA filed its Notice of Appeal with the Appellate Division. After briefs were filed by OCAPA and the respondents BOA and Developer, the court issued its decision dated May 25, 2010. Petition Pa8. In affirming the Law Division, the court wrote as follows to justify its refusal to consider any argument or evidence on stormwater or ìquid pro quoî issues:
Finally, plaintiffs contend for the first time
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on appeal that defendant Board failed to find that the applicantís stormwater management plan was in compliance with the Township ordinances or with the regulations of the Department of Environmental Protection. This contention was not pleaded in plaintiffís amended complaint in lieu of prerogative writs, and it was not raised before the Law Division. In the absence of jurisdictional grounds or ëmatters of great public importance,í we will not consider a ground or argument raised for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Krause, 39 N.J. Super. 579, 583 (App. Div. 208).
[Petition Pa11-12, emphasis added.]
On June 4, 2010, OCAPA filed their motion for reconsideration. The motion addressed the courtís failure to consider any issue related to the Developerís stormwater plan or drainage system. The brief in support of this motion provided examples from the record below to demonstrate the courtís error. The brief reveals that stormwater contentions were reasonably a part of the amended complaint; they were raised by OCAPAís counsel before Judge Lawson in the trial brief and in oral argument; therefore, the issue was not raised ìfor the first timeîon appeal. In any event, the motion further argued that, even if raised for the first time, issues of stormwater planning, run off drainage and control of non point water pollution, especially when coupled with the indications that the Developer had been pressed into agreeing to this oversized system as an ìexactionî from the Board, were matters of sufficient
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ìpublic importanceî to be raised for the first time on appeal. Nevertheless, the court, without even awaiting responsive briefs from the other parties, issued an order denying the motion.
On July 2, 2010, OCAPA filed its ìNotice of Petition for Certification Pursuant to Rule 2:12-5,î (Petition Pa1-6), and now submits its Petition for Certification.
V. SUMMARY OF PERTINENT FACTS:
The planned carwash and automotive service center was approved for a site which, for more than 150 years, had been the site of one of the earliest houses in Neptune Township. To save the structure, the Township Committee had filed suit to prevent the demolition of the historic structure, but the Developer promptly bulldozed the house even though it was occupied at the time by renters. Next door to the site is the oldest house in the township, dating from 1790. The site stands on the crest of a hill along Route 33 and is the highest point in the Township. As a result, the adequacy of stormwater or drainage control should have been a prominent concern of the BOA. Yet instead of requiring the Developer to submit a formal engineering plan to contain the runoff on site or deposit it in an existing drainage basin close by on Route 33, the BOA insisted and the Developer agreed to install piping to carry stormwater flows more than 600 feet downhill along Old Corlies Avenue, past numerous residences, digging up their frontage, to
-7-
where it would eventually discharge stormwater and non point pollution into the Shark River which is a Category 1 stream (DEPís highest rating for water quality). In short, by not addressing these issues, though argued and briefed below and to the appellate court, clear error was committed and a grave injustice was done that should have led to reconsideration being granted when requested.
VI. ARGUMENT: This Petition should be granted as this case presents important but largely unsettled issues of public interest that call for the exercise of the Supreme Courtís supervision to prevent clear error and manifest injustice, and to provide much-needed guidance to lower and appellate courts:
A. No recent Supreme Court decision has articulated clear standards for Appellate Division review of motions for reconsideration:
As the Court knows, Rule 2:11-6 governs the filing of motions for reconsideration in the Appellate Division and Supreme Court. The rule specifies the timing for submission of such motions (10 days), the number of copies to be filed with adversaries (two), and how many copies to submit to the Appellate Division or Supreme Court (five or nine); the Rule also specifies a maximum number of pages (25) and clarifies other filing instructions. R.2:11-6(a). The Rule further addresses how the motion may be granted: ìA motion
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for reconsideration will be granted only if it is moved by a justice or judge who concurred in the judgment or decision and a majority of the court so determines. It may be granted in whole or in part….î Finally, the Rule provides for sua sponte reconsideration. R. 2:11-6(c).
Noticeably absent from the Rule is any discussion of the basis for such a motion to be granted or the standards for judges to apply in reviewing such a motion. From our research of the case law, we find that the Court has articulated only the most generalized of standards. In Darel v. Pennsylvania Mfrs. Assín Ins. Co., 114 N.J. 416, 426 (1989) ñ apparently the last reported case in which the Court had occasion to address the matter, if in passing ñ the Court wrote as follows: ìëAs has been observed elsewhere, ë[c]onfession of error is good not only for the soul but for an accurate view of the law.í… We are confident that the world will continue to turn if judges are allowed to correct their mistakes.î Darel, 114 N.J. at 426, quoting a footnote in a concurrence in Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 140, 179, n. 1. These observations are useful expressions of a judicial policy that courts should recognize when they do commit errors and should be open to requests that they correct their errors, especially when they are called to their attention on a timely basis. Nevertheless, we submit, the courts and legal
-9-
practitioners would benefit from refinement of these precepts, lest the Rule be given short shrift, effectively nullifying the opportunity to prevent error and injustice.
Therefore, we suggest that at least where the ground for reconsideration includes
(1) the courtís mistaken belief that an issue was improperly before the court ñ because allegedly it was raised for the first time on appeal — and
(2) when the movant provides detailed, record citations to demonstrate that this belief was in error, then a court should be required to grant the motion for reconsideration. This requirement should be subject only to the court finding that the error, although revealed, is too inconsequential as not to have influenced the outcome. Moreover, the court should be directed to provide some explanation for its denial of reconsideration in such a circumstance as here, i.e., when the moving party has demonstrated the courtís error. We respectfully suggest that a one word denial order in such circumstances as found in this case is not in keeping with the intention of the governing court rules.
Finally, to borrow from the Courtís dictum in Darel, supra, and Suter, supra, such a denial is not ìgoodî for the ìsoulî and does not lead to an ìaccurate view of the law,î contrary to the purpose of the Rule.
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B. By any reasonable measure, pursuant to Rule 2:11-6, reconsideration should have been granted to correct a clear error or to prevent a manifest injustice:
In Polidori v. Kordys, Uzzio & DiTomasso, 228 N.J. Super. 387, 394-395 (App. Div. 1988), the Appellate Division suggested a similar standard for granting reconsideration: ìThough the power exists to reopen the points of law already decided, it is a power which will necessarily be exercised sparingly, and only in a clear instance of previous error, to prevent a manifest injustice.î This suggested test, also paraphrased as a ìpalpably wrongî test, 228 N.J. Super. at 395, was subtly revised in the Comment to Rule 2:11-6. The latter summarizes Polidori that ìsuch a motion [to reconsider] would be entertained only if the challenged holding were clearly in error or if reconsideration was necessary to prevent a manifest injustice.î Thus, the latter (prevention of a ìmanifest injusticeî) is a separate or distinct basis for granting the motion, along side the former (the holding was ìclearly in errorî). Together these imply a liberalizing trend in the rule as formulated and to be applied more openly than to require both ìclear errorî and a ìmanifest injustice.î
In any event, whether considered in the disjunctive or the conjunctive, the Appellate Division should have granted the motion under the circumstances seen here. Clear error was shown by way of
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numerous citations to the record which revealed that stormwater contentions had been raised, debated and argued below, in briefs and orally below (before the BOA and before Judge Lawson). And prevention of a manifest injustice also pertains due to the enviromental harm and community disruption of the proposed drainage pipe system. Simply put, adequacy of stormwater controls is a matter of ìpublic health and safety,î on a par with water supply and sewerage. See, e.g., Save Hamilton Open Space v. Tp. Planning Board, 404 N.J. Super. 278, 283 (App. Div. 2008), affirming ìthe responsibility of the municipal land use agency to determine complianceî with the DEPís stormwater control regulations, N.J.A.C. 7:3-1.1 to 6.3, and the local stormwater ordinance. In re Stormwater Mgmt. Rules, 384 N.J. 451 (App. Div.), certif. denied, 188 N.J. 489 (2006). And see also the Municipal Land Use Law (ìMLULî), which mandates careful consideration by planning and zoning boards of stormwater plans to protect public health and safety. N.J.S.A. 40:55D-93, -99 (the 1981 MLUL amendments adding stormwater controls to the mix of issues for consideration by land use boards).
Finally, there is the intangible but no less immutable harm done to the integrity of the land use decision-making process if a board may demand or negotiate certain costly ìexactionsî from a developer as part of the price of awarding it zoning approvals.
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See, Shore Builders v. Tp. of Jackson, 199 N.J. 449 (2009); Nunziato v. Edgewater Planning Board, 225 N.J. Super. 124, 129-130 (App. Div. 1998); Township of Marlboro v. Pl. Board of Holmdel, 279 N.J. Super. 638, 643-644 (App. Div. 1995); and Pond Run Watershed v. Tp. of Hamilton Zoning Bd., 397 N.J. Super. 335, 358-360 (App. Div. 2008). And see also Swanson v. Planning Board of Hopewell, 149 N.J. 59, 66 (1997), concurring opinion of Justice Stein:
The possibility that municipal decisions concerning zoning … could be subject to influence by a payment from a developer substantially in excess of any amount that lawfully could have been imposed [pursuant to N.J.S.A. 40:55D-42] is fundamentally incompatible with the purposes underlying the MLUL … Extraneous considerations, such as a developerís voluntary contribution to defray the cost of a municipal obligation, should not be permitted to influence or affect municipal zoning decisions. Similarly … we have expressed our concern about disproportionate impositions and emphasized the need for boards, in imposing such charges to at in accordance with prescribed standards … Our case law has been extremely sensitive to the threat presented by unlawful exactions imposed by a municipality on developers, whether the developers are reluctant or enthusiastic participants in the transactions….
[Swanson, 149 N.J. at 66.]
Hence, the appellate court had ample reason and justification to reconsider its decision, given the ìpublic importanceî of the stormwater and unlawful exaction contentions, even if they had been raised ìfor the first timeî on appeal.
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C. The Appellate Division has created a new criterion for the grant of use variances, namely, that ìthe proposed use is similar to other uses in the Highway 33 corridor near the subject property:î
Without citing any precedent, the Appellate Division determined that ìthe proposed use is similar to other uses in the Highway 33 corridor near the subject property,î and, therefore, deserving of a use variance. Petition P11a. Thus, the Appellate Division concluded, ìThe Board did not re-zone by means of variance but performed its proper function in a typical application for variances.î Petition P11a. But whether it was ìtypicalî belies the question of whether it was legal; it was not.
The Appellate Division echoed the Law Divisionís finding:
Specifically, Applicant seeks to develop a commercial use in a commercial zone. While the Medici court found this evidence alone to be an insufficient reason, enough commonalities between the proposed and permitted uses [in the C-5 zone] exist for Applicant to meet their [sic] burden.
[Petition Pa18.]
These ìcommonalitiesî were at best superficial and, if not corrected, threaten to undo the strict criteria laid down by this Court more than twenty years ago in the landmark ruling, Medici v. BPR Co., 107 N.J. 1, 4-5 (1987): ìApplicant established its proposed development is an automotive service establishment use[s]
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associated with roadway orientation. Further, Applicant argued, and the Board agreed through its resolution, that these factors established the sites [sic] suitability for this particular use.î Petition Pa19.
If it is sufficient that the prohibited use is ìassociated with roadway orientationî to support a finding of ìspecial reasonsî for site suitability, then Medici has been effectively repealed. Afterall, it may fairly be asked what commercial use of any property is not ìassociated with roadway orientation?î As long as there are automobiles, every ìcommercial useî will be ìassociated with roadway orientation.î This opens the door for use variances and is squarely at odds with Mediciís holding:
We now reaffirm the holding in Kohl that… the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. In addition … we deem it appropriate to require an enhanced quality of proof, as well as clear and specific findings by the board of adjustment, that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. Such proofs and findings must satisfactorily reconcile the grant of a use variance with the ordinanceís continued omission of the proposed use from those permitted in the zone, and thereby provide a more substantial basis for the typically conclusory determination that the variance ëwill not substantially impair the intent and purpose of the zone plan and zoning ordinance.í N.J.S.A. 40:55D-70(d). This added requirement will apply in all use variance cases. We anticipate that its
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application will not significantly limit the use-variance mechanisms but will narrow to some extent the discretion of boards of adjustment in reviewing use-variance appeals for uses that are deliberately excluded by the governing body from those permitted by the zoning ordinance. It will also effectuate the legislatureís apparent objective of encouraging municipalities to make zoning decisions by ordinance rather than by variance.
[Medici, 107 N.J. at 4-5.]
Recently, the Appellate Division in Saadala v. E. Brunswick Zoning Bd., 412 N.J. Super. 541 (2010), reviewed the criteria for grant of a use variance for a commercial use that is not inherently beneficial and correctly applied the Medici standards:
… the required proof of special reasons focuses exclusively on the special characteristics of the property and imposes on the applicant the burden of establishing either that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought, or that undue hardship exists because the property for which the use variance is sought cannot reasonably be adapted to a conforming use.
[Saadala, 412 N.J. Super. at 551, citing Stop & Shop Supermarket Company v. Board of Adjustment of Springfield, 162 N.J. 418 at 431 (2000).]
In the instant case, the Appellate Division substituted a new criterion, ìthe proposed use is similar to other uses in the Highway 33 corridor near the subject property,î Petition Pa11, emphasis added, for the requirement that ìthe use is peculiarly fitted to the particular location.î Stop & Shop, 162 N.J. at 431.
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CONCLUSION:
For the reasons expressed herein, it is respectfully requested that the Supreme Court grant this petition for certification.
Respectfully submitted,
POTTER AND DICKSON
Dated: July 23, 2010
Filed under Uncategorized | Comment (0)OCAPA’s REPLY to MONICA KOWALSKI’s STATEMENTS AT THE NEPTUNE BOA MEETING 6/2/10
June 2, 2010
Monica C. Kowalski, Esq.
Law Offices of Ms. Monica C. Kowalski, Esq.
509 Main Street, Suite 1
Avon by the Sea, NJ 07717
Re: The propriety of communications between OCAPA and other residents of Neptune Township with the Zoning Board of Adjustment
Dear. Ms. Kowalski:
This letter replies to your letter of April 14, 2010 which was unfortunately mislaid in which you objected to any attempt by residents of the Old Corlies Avenue area of Neptune to communicate with members of the Zoning Board of Adjustment of Neptune Township regarding any matter related to the “1019 Old Corlies, LLC” application, citing the continuing litigation over the matter. Please be advised that I respectfully disagree with your analysis and advice for the following reasons:
First, notwithstanding any litigation, these residents have a nearly absolute constitutional right to communicate with any government officials, including BOA members. The fact of litigation makes no difference whatsoever. Your letter cited to no legal authority for the proposition that there is some “impropriety” in these or related communications due to a litigation. Perhaps you had in mind Rule of Professional Conduct (RPC) 4.2 (“Communications with Persons Represented by Counsel”) which provides in relevant part as follows: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows … to be represented by another lawyer in the matter….” Thus, the RPC applies solely to OCAPA’s attorney, and there have been no communications between this office and members of the BOA. Moreover, in the “Comment” to RPC 4.2, the Court notes a First Amendment exception to this rule even for a lawyer: “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with a governmental official. For example, the constitutional right to petition and the public policy of ensuring a citizen’s right of access to government decision makers may permit [even] a lawyer representing a private party in a controversy with the government to communicate about the matter with government officials who have authority to take or recommend action in the matter.” (Emphasis added.) In short, if even OCAPA’s attorney has a right to make such communications, then it clearly follows that there can be no impropriety in Neptune Township residents, including OCAPA members or supporters, communicating – or attempting to communicate – on their own with the BOA “to take or recommend action in the matter.” Thus, I urge you to revise your advice to the BOA membership and to release to them whatever communications, petitions or letters that you may have intercepted, held back from them, or advised them to disregard due to a mistaken understanding of the matter.
Second, I must disagree that there is nothing that the BOA has authority to do or recommend be done with respect to the 1019 Old Corlies development project, a jurisdictional decision which, in any event, is for the BOA to determine, though, of course, your input could be solicited on that question. As I understand it, the primary thrust of these OCAPA communications, petitions and letters is their effort to seek the assistance of the BOA in the enforcement of a condition of the 1019 Old Corlies “Resolution of Memorialization” (“ROM”) which reads as follows:
“ADDITIONAL CONDITIONS:
“ALL APPROVALS GRANTED HEREIN ARE SUBJECT TO THE FOLLOWING CONDITIONS….
“n. SUBJECT TO ALL REPRESENTATIONS AND TESTIMONY OF THE APPLICANT BEING TRUTHFUL AND ACCURATE
“o. SUBJECT TO ALL CONDITIONS AS SET FORTH ON THE RECORD AND AS OUTLINED BELOW:”
As you know, OCAPA members and supporters have been stating, and continue to state, that there is evidence to indicate that the above condition “n” was not satisfied. They have cited to potentially false or inaccurate testimony and statements made to the BOA regarding, for example, the justification for constructing an extensive off-site stormwater management system that is (1) disruptive to the Old Corlies Avenue community, (2) may cause a substantial increase in the release (discharge) of “non point” pollutants into the Shark River Brook and Shark River Estuary, and (3) disregards an existing stormwater collection system alternative along Route 33.
Thus, OCAPA’s recommendation that the BOA at least give serious consideration to this important matter and determine its jurisdiction to rescind the grant of variance approvals or take other prudent action – such as referring the matter in the first instance to the Zoning Officer who is charged with investigating zoning complaints; see N.J.S.A. 40:55D-70(a) and Paruszewski v. Tp. of Elsinboro, 154 N.J. 45, 53 (1998) – is an entirely proper act of civic responsibility by these residents of the Township. (See also, Nouhan v. Bd. of Adjust of Clifton, 392 N.J. Super. 283, 291 (App. Div. 2007; permitting appeal to the BOA of any claim that a Zoning Office has erred.) At a minimum, their letters should not have been intercepted and withheld, as apparently occurred at your direction.
In conclusion, I wish to request that you promptly share this letter with the Zoning Board membership so that they will have the opportunity to render their own decision on these issues. I also urge you to release at once any letters or other communications you may have in your possession that were intended for the BOA members.
Sincerely yours,
POTTER AND DICKSON
By R. William Potter
RWP/erd
Filed under Statements, Uncategorized | Comment (0)OCAPA’s STRIDES
Thank you for your continued show of support over these past 3 years towards OCAPA’s efforts to preserve and protect the residential and historic corridor of Old Corlies Avenue – the birthplace of Neptune Township and Ocean Grove.
Some of you have recently asked what strides OCAPA has made in this endeavor.
Well, since becoming organized and registered as a nonprofit in 2007, OCAPA has so far:
- Prevented the commercial intrusion of a car wash / oil change / and lubrication facility from being built on the property of 1019 Old Corlies Avenue. As you may have read on our home page, the case is now pending before the Supreme Court.
- Reactivated the investigation and remediation effort of the New Jersey Department of Environmental Protection for significant contamination from the gas station adjacent to the 1019 Old Corlies Avenue property.
(Note that all the foliage – some being 200 year old trees – will be stripped away if the car wash / oil change / lube facility project is not stopped.)
- Unveiled the Neptune Township Board of Adjustment’s negligence to enforce their own Municipal Stormwater Plan intended to protect the Shark River Brook, an FW-2, Trout Maintenance, C-1 Classified Waterway – the area’s main potable water source.
- Discouraged the development of town houses at the Welsh Farms Dairy site (formerly known as Wardell’s Dairy) and supported the Township’s purchase of it with the assistance from the State Green Acres and County Open Space programs. The township has assured us that it will be used as open space.
- Brought before the Neptune Township Committee the issue of traffic problems exacerbated by increased commercial development along Routes 33 and 66 i.e. speeding from Route 33 onto Old Corlies Avenue from both the east and west entrances. Solutions, such as lowering the speed limit along Old Corlies Avenue are currently being sought.
- Brought before the Township Committee the issue of high speed traffic problems that already exist along Route 33 and that undoubtedly will be compounded if this car wash /lube/ oil change facility is constructed.
- Ongoingly attended meetings of the Township Committee, Board of Adjustment, Planning Board, and Master Plan Sub-Committee on a regular basis to stay current with the issues that effect the fiber of Old Corlies Avenue.
- Created several ideas for the beautification of this old Indian trail and stage coach route. Some of these are:
- A community cleanup day
- Banners commemorating the rich history of the area
- Attaining historic designation status from the township for the corridor and the 18th and 19th century one-hundred-year and older homes that still remain along it
- Acquiring and installing on-site plaques presenting the historic facts about the existing historic homes and those that once stood on properties of note
- Paying a colorful and striking tribute to the rich history of the area by encouraging residents and property owners along Old Corlies Avenue to plant the Rose Campion – a hearty heirloom plant that can be purchased directly from OCAPA.
The Old Corlies Avenue Preservation Alliance has also:
- Endorsed a documentary, titled “Critical Juncture”, commemorating the history of Hamilton and its vulnerability to being forever lost to the rapid incursion of commercial development as exemplified by OCAPA’s current lawsuit against the Neptune Board of Adjustment and the applicant for the car wash / oil change / lube facility. This has been shown at many OCAPA functions.
- Developed this comprehensive web site which presents these current issues and events and provides a blog format to encourage feedback and suggestions from visitors.
- Kept these issues in the public eye by writing countless letters to the editor of The Asbury Park Press and The Coaster.
- Published and distributed ongoingly, a newsletter, titled “Our Town”, to keep the residents of West Neptune and supporters of OCAPA informed of current issues, township meetings, and fundraising events.
Our most recent newsletter, “Our Town”, documents the quid pro quo deal between the Board of Adjustment and the car wash applicant that took place before the hearings on the application were even held and the untruthful and inaccurate statements that were made by the applicant during the hearings in a vain attempt to justify an unnecessary storm sewer (i.e.,the applicant`s part of the deal in exchange for approval of the application). Our position is that there is more than adequate basis for the approval of the application to be rescinded. Yet our elected officials, i.e., the Township Committee, refuse to rein in the Board of Adjustment which they appointed, and make them live up to the condition they placed upon their approval of the application, i.e., that all testimony be accurate and truthful.
OCAPA’s most recent flyer distribution elaborates on the application which was to be heard by the Board of Adjustment in June regarding the 120-foot T-Mobil cell tower proposed for a site immediately adjacent to the Hamilton Cemetery and highly visible from Old Corlies Avenue and elsewhere. We have been informed that T-Mobil has withdrawn the application but still has the option to present it again in September. Just in case, OCAPA is continuing to collect signed petitions from residents to oppose this project. (Please download it from our web site under the “Petitions” category to the right.)
The historic and residential character of Old Corlies Avenue has become increasingly vulnerable to degradation brought about by the increase of commercial businesses along Routes 33 and 66. In the past 3 years, every section of this stretch of road has been under threat of commercial incursion which, if allowed, would forever change its historic and residential landscape.
It truly does “take a village” to make a stand to preserve and protect what has taken centuries to build. Know that you can make a difference. If you would like to assist this community effort, please contact OCAPA via email: newsletter@oldcorlies.com or phone: 732.904.0866.
We welcome your participation.
The Old Corlies Avenue Preservation Alliance
Filed under Current Newsletter, Uncategorized | Comment (0)Did You Know That Old Corlies Avenue Has An Official Flower?
The Rose Campion is a hearty flowering heirloom perennial with a beautiful combination of magenta flowers and soft silver foliage.
OCAPA sells them each year at our Spectacular Spring Flower Sale which will be on Saturday, May 8th this year (just in time for Mother’s Day…!) along with a choice selection of other flowering plants.
Select HERE to learn more about the Rose Campion and understand just why it was chosen to represent the historic corridor of Old Corlies Avenue.
If you would like to place an order for Rose Campion, just download and print the order form HERE and mail or hand deliver it with your check for the total amount to OCAPA c/o Jennifer Eldridge at 1012 Old Corlies Avenue, Neptune, NJ 07753 by Saturday, May 1st. Any questions? Just contact Muriel Ludvigsen via ocapa@oldcorlies.com and she will be happy to assist.
Each 8″ pot contains several plants and is $15.
Orders will be filled for pick-up on Saturday, May 8th at the corner of Old Corlies Avenue and Cedar Terrace between the hours of 9am and 1pm. Otherwise alternative arrangements can be made for delivery and pick-up.
Thank you for working with OCAPA to beautify, preserve, and protect the birthplace of Neptune Township.
