SAMPLE PREROGATIVE WRIT ZONING BOARD BRIEF

ARGUMENT

I. THE TRIAL COURT ERRED IN INVALIDATING THE ZONING BOARD'S GRANT OF THE APPLICATION FOR THE PER SE REASON THAT XXXXXX AND XXXXXX CHANGED THEIR VOTES DURING THE APRIL 13, 2000 RECONSIDERATION

The only reason cited by Judge XXXXXX in his oral opinion finding the grant of the application upon the revote to be arbitrary and capricious was that two Board Members, viz. XXXXXX and XXXXXX, changed their vote from denying the application at the first hearing, to approving the application at the reconsideration hearing. Judge XXXXXX took issue with the fact that XXXXXX and XXXXXX' reasons for changing their vote were not set forth on the record.

For some reason, not set forth adequately in the record, Ms. XXXXXX and Mr. XXXXXX changed their vote from a denial of the application to an approval of the application. There are no adequate reasons set forth in the record to indicate why they changed their vote. They did ask for some conditions. The Court regards the vote taken on April 13th, whereby XXXXXX and XXXXXX changed their opinion, as arbitrary and unreasonable.

[4T-68:22 to 69:5]

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A. XXXXXX And XXXXXX Changed Their Vote, In Part, Because The First Hearing Transpired Until Late Into The Night And They Were Confronted With A Vote Where They Were Too Exhausted To Think The Matter Through

Both Mr. XXXXXX and Ms. XXXXXX expressed the opinion that the February 17, 2000 hearing went late into the night and that they did not have time to thoroughly consider the application before voting. XXXXXX stated that he "was fuzzy" by the time that he voted [3T-8:9-22] on February 17, 2000 and that the hearing "went way too late." [3T-7:9-10] Ms. XXXXXX also stated at one point that, "As I said last time, I had great difficulty making a decision and it's kind of a fluke situation that we're revisiting the case. And since I did have the opportunity to rethink it, I've decided that I thought that the positives outweigh the negatives …" [3T-22:25 to 23:5]

A major concern of Both XXXXXX and XXXXXX during the February, 2000, hearing was that there was no guarantee that the subsequent owners of the property would abide by the terms and conditions that would have attached to their Resolution. By the time that the second hearing came around, there was a proposal for a deed restriction providing that "the property owner must maintain noise safeguards in the same or better condition as currently exists." [3T-4:6-10] "In addition, the property owner must put in place a satisfactory method to filter out fumes, and that this filter must be maintained in the same or better condition as currently exists." [3T-4:11-15]

The lack of a deed restriction was one of the primary reasons that XXXXXX and XXXXXX voted adverse to Defendant XXXXXX on February 17, 2000. Mr. XXXXXX said, "I mean, I think I said what I have to say, that I thought this was an incredibly close vote last time. I had a problem and a big concern with what happens with the next owner of the property. I couldn't see a solution to it that night." [3T-15:13-20] He went on to state that if such considerations concerning a deed restriction were made during the February, 2000, hearing, he very well may have cast the vote which would have tipped the scales in favor of Defendant XXXXXX.

The last time we were here to discuss this, in the closest vote I've ever had here, I was in about 51 percent to 49 percent, or maybe 50.5 to 49.5 in opposing the proposal.

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My concern that night was that we put sufficient restrictions to ensure any future owner had to live up to the proposals that Mr. XXXXXX made.

I was very disappointed when I left that evening, because the discussion actually took place after the vote. The little bit of discussion that we had. And I was very much persuaded by the statements made by Tony Vecchio. Of course, those statements came after the vote had already taken place.

Had I heard those statements made and that discussion made, I believe I would have balanced it 50.5 to 49.5 the other way that night.

It's a fluke that we're here to vote again. I'm glad that we have that opportunity. …

* * * *

Although I still feel it's an incredibly close vote, with a much better feeling, feeling that we've discussed it fully, I'm voting yes.

[3T-28:19 to 29:14; 3T-30:4-6]

As to Ms. XXXXXX, her position was as follows:

I think adding these two little deed restrictions are helpful. I don't think it makes a difference.

I think to me it means that it's probably just - it's very close, but in giving myself a little time to think about it, probably the positive outweigh the negative, even though it's pretty close.

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So when the vote comes, you know my vote now in advance. Unfortunately, I'm the W, so either it's good or it's bad. But I'm telling you that I'm going to go with the restrictions in the deed and hope that the applicant will be very concerned about his neighbors. I felt that he would and will make every effort to do what he said he would.

[3T-22:25 to 24:10]

Accordingly, the trial court abused its discretion by finding that XXXXXX and XXXXXX failed to indicate on the record why they decided to change their votes. Considering that this was the only reason cited by the trial court in invalidating the Zoning Board's decision to reconsider and resulting Resolution, this reason alone should suffice to reverse the trial court's Final Judgment.

B. There Is Nothing Inappropriate About A Zoning Board Reconsidering One Of It's Prior Determinations, Providing That Reconsideration is Reasonable

In any event, "the right to order a rehearing is inherent in administrative tribunals …" New Jersey Bell Tel. Co. vs. Dept. of Public Utilities Bd. Of Public Com'rs, 12 N.J. 568, 578 (1953), citing Handlon vs. Town of Bellevillie, 4 N.J. 99, 106-07 (1950); Mutschler vs. New Jersey Dept. of Environmental Protection, 337 N.J. Super. 1, 14 (App. Div. 2001), cert. denied, ___ N.J. ____ (2001). This is so providing that the reconsideration is reasonable and is conducted with due diligence, Duvin vs. State Dept. of Trasury, 76 N.J. 203, 207 (1978); Matter of Cadgene Family Partnership, 286 N.J. Super. 270, 277 (App. Div. 1995); In re D'Aconti, 316 N.J. Super. 1, 10-11 (App. Div. 1998), and that there are no legislative restrictions on such reconsiderations for that specific agency. Duvin, supra, at 207; New Jersey Bell, supra, at 578; In re D'Aconti, supra, at 10-11; Padovano vs. Borough of East Newark, 329 N.J. Super. 204, 217 (App. Div. 2000), cert. denied sub nom., East Newark Branch of Harrison Patrolman's Benevolent Ass'n vs. Borough of East Newark, 165 N.J. 489. These very principles are applicable to zoning board decisions. Stafford Smith vs. Zoning Board of Adjustment, 59 N.J. Super. 553, 559 (App. Div. 1960), cert. denied sub nom, Stafford Smith vs. Kirkpatrick, 32 N.J. 352.

We hold that the right to such review does not detract from the power of the board to grant a rehearing whenever the board thinks it will serve the ends of essential justice and the policy of the law … When and under what conditions such a rehearing shall be granted is for the board to decide, subject to the same review as its other decisions.

Id. at 559.

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During the oral argument below, the plaintiffs attempted to overcome the Board's right to reconsider its prior determinations by submitting that the "change in the vote, in the absence of any new testimony on evidence, should be viewed, by this Court, as having been arbitrary, capricious and unreasonable." [4T-9:4-8. See also 4T-9:20-23] Plaintiffs also argued that res judicata applied. [4T-33:18 to 34:7] There was no issue of res judicata because the reconsideration concerned the same parties, the same subject matter, and the same six Board Members. [4T-59:1-14] Application of Trantino, 86 N.J. 347 (1982). The fact that the same issues were raised was conceded by the plaintiffs. [4T-8:22-24]

II. THE ZONING BOARD DID NOT ERR BY HOLDING THAT IT WAS LEGALLY OBLIGED TO HOLD A REVOTE BECAUSE THE FEBRUARY 17, 2000 3-3 TIE VOTE WAS NOT TAKEN BY A MAJORITY VOTE, CONTRARY TO N.J.S.A. 40:55D-9

The Zoning Board acted appropriately by holding that the initial February 17, 2000, motion to deny which resulted in a 3-3 tie vote did not serve as a denial of the application because motions to deny applications require a majority vote under N.J.S.A. 40:55D-7(a), whereas motions to approve an application require five affirmative votes under N.J.S.A. 40:55D-70(d). In accordance with this opinion, the Board held a second vote, this time on a motion to affirm rather than deny. This was the proper means with which to deal with the underlying situation.

Motions to deny an application are governed by N.J.S.A. 40:55D-7(d) which provides that,

All actions shall be taken by a majority vote of the members of the municipal agency present at the meeting, except as otherwise required by sections 23, 25, 49, 50 [40:55D-32; 40:55D-34; 40:55D-62; 40:55D-63], and subsections 8e, 17a, 17b, and 57d. [40:55D-17; 40:55D-26; 40:55D-70] of this act. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application.

Id.

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Motions to grant an application are governed by one of the specified exceptions listed in N.J.S.A. 40:55D-7(d), N.J.S.A. 40:55D-70(d), which provides

A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.

Id.

The initial vote on February 17, 2000, was one to deny the application. Accordingly, under N.J.S.A. 40:55D-7(d), a majority vote was necessitated and the tie 3-3 vote failed to be a majority. As stated by zoning expert, William M. Cox, Esq., the author of Zoning and Land Use (GANN), in a letter opinion submitted to the Board on behalf of Defendant XXXXXX,

[T]he Board failed to deny the variance because all actions must be taken by a majority vote of the members of the municipal agency present. N.J.S. 40:55D-9. Had the motion been worded affirmatively, that is to grant the variance, and a 3-3 vote resulted (or anything less than 5 votes), then the variance would clearly have been denied.

As it is the Board had failed to either grant or deny, so that unless the Board takes further action on the matter to complete its decision, conceivably a statutory approval of the variance could result from the Board's failure to make a decision within the statutory time limit.

[Pa-14, Vol. I]

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Contrary to the position of the trial judge to the effect that Mr. Cox is only a "so-called zoning expert" [4T-67:17], Mr. Cox is most likely the most recognized expert in the field of zoning and land use.

Accordingly, the trial court abused its discretion in holding that Board acted arbitrarily and capriciously merely because they found a second vote to have been appropriate.

III. THE TRIAL COURT ERRED BY PROVIDING THE MATTER DE NOVO REVIEW

A. The Trial Court Erred By Failing To Recognize The Presumption Of Validity Afforded To Zoning Board Decisions.

"[W]here a variance is granted by municipal officials pursuant to statutory authority, it is entitled to the customary judicial presumption of validity …." Kramer vs. Board of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965). Accord, Smart SMR of New York, Inc. v. Fair Lawn Board of Adjustment, 152 N.J. 309, 327 (1998); Atlantic Container, Inc. vs. Tp. of Eagleswood Planning Bd., 321 N.J. Super. 261, 278 (App. Div. 1999). This is because the Board Members are "local people, familiar with the community's characteristics and interest, [who] are best equipped to assess the merits of a variance application." Hawrylo vs. Board of Adjustment, Harding Township, 249 N.J. Super. 568, 578 (App. Div. 1991). Accordingly, the burden of proving that the Board acted arbitrarily and capriciously laid with the plaintiffs.

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This presumption means that the court's power "[i]n reviewing any decision of a zoning board … is tightly circumscribed." New Brunswick Cellular Telephone Co. vs. Zoning Board of Adjustment of Borough of Metuchen, 307 N.J. Super. 560, 566 (Law Div. 1997), aff'd, 307 N.J. Super. 436 (App. Div. 1997), cert. granted and matter remanded, 153 N.J. 47 (1998). See also Chicalese vs. Monroe Township Planning Board, 334 N.J. Super. 413, 418 (Law Div. 2000)(following New Brunswick); Fred McDowell vs. Board of Adjustment of the Township of Wall, 334 N.J. Super. 201, 212 (App. Div. 2000)("The scope of review applicable to a decision of a municipal zoning board is narrow.").

"The question is never what [the reviewing court] would have done in the circumstances, but whether the zoning board abused its authority or departed from law." Kramer, supra, at 285 (inner quotation marks omitted), quoting Cummins v. Bd. of Adjustment of Bor. of Leonia, 39 N.J. Super. 452, 460 (App. Div. 1956). "So long as there is substantial evidence in the record the Court may not interfere with or overturn the factual findings of a municipal board." Kramer, supra, at 567. "Even when doubt is entertained as to the wisdom of the board's acceptance of certain evidence or its rejection of other testimony, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the board." Id.

B. The Trial Court Erred By Providing De Novo Review To The Zoning Board's Decision to Reconsider The Matter

[A] board's decision regarding a question of law, such as the scope of its own authority or jurisdiction, is subject to a de novo review by the courts … and is entitled to no deference since a zoning board has no peculiar skill superior to the courts regarding purely legal matters.

Id. (inner citations and
quotation marks omitted)

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The Court erred, however, by providing de novo review to the Board's per se decision to reconsider their prior determination. As set forth in Point I(B), supra, the Board had the discretion to entertain such a reconsideration. A determination upon appeal to disturb the exercise of that discretion "must be made on the basis of what was before the board and not on the basis of a trial de novo." Fieramosca vs. Township of Barnegat, 335 N.J. Super. 526, 530 (Law Div. 2000), citing Kramer, supra, at 296. The exercise of that discretion ought not be disturbed unless it is arbitrary and capricious. Medici vs. BRP Co., 107 N.J. 1, 22 (1987).

IV. THE REMAINDER OF THE ARGUMENTS ADVANCED BY PLAINTIFFS BELOW WERE ENTIRELY DEVOID OF MERIT

In addition to those arguments raised above, plaintiffs advanced a plethora of arguments in the Superior Court in support of their position that that the Zoning Board acted arbitrarily and capriciously. Some of those arguments were:

(1) No testimony or evidence was presented the Board as to four of the five bulk variances sought [10:11-18] and neither the affirmative or the negative criteria of N.J.S.A. 40:55D-70(c) and (d) have been met for granting the variances. [4T-24:11-17];

(2) The Board failed to make meaningful findings of fact and conclusions of law [4T-12:24 to 13:2; 25:5-13], there was no reference made by the Board as to the Master Plan [4T-24:18-24], and the Board failed to vote on a site plan. [4T-12:13-15];

(3) One of the primary reasons that Defendant-Appellant Chris XXXXXX sought to purchase the lot was to aesthetically impress his customers [4T-17:4-9] and the Board erred by taking the aesthetics into consideration because the word "aesthetics" does not appear anywhere in the Municipal Land Use Law. [4T-20:24 to 21:8];

(4) Board failed to take into consideration that the structure in question contains no buffer zone between it and the adjacent residences and that the Board erred in granting the application because, on December 2, 1997, which was after the construction of the structure but before the instant application, the Township of West Orange enacted local ordinance § 1458-97 mandating that there by a buffer zone of 75 feet consisting of flowers, shrubs, and the like. [4T-7:7-14; 4T-26:3-15]; and,

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(5) The Board permitted only 48% of the required parking spaces [4T-7:15-19], the Board granted 50% more signage space than permitted [4T-7:20-22], the Board permitted thirty feet of rear yard space whereas the Board permitted less than one inch [4T-7:1-6], and that the Board did all of these things for no reason other than the fact that they appeared to have liked Mr. XXXXXX as a person. [4T-27:13-19]

Each of the above arguments presented by the plaintiffs in support of their position that the Board acted arbitrarily and capriciously is discussed in turn below.

A. Ample Evidence Was Presented The Board To Justify The Grant Of The Use Variances

Special reasons must be evidenced under N.J.S.A. 40:55D-70(d) to justify a zoning board Resolution granting a "d" variance. The relevant part of that statute provides, in part,

In particular cases for special reasons, [the Board may] grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principle structure in a district restricted against such use or principle structure ….

N.J.S.A. 40:55D-70(d)(1).

The intensity of "special reasons" which must be established varies with the facts of the particular case. North Bergen Action Group vs. North Bergen Township Planning Board, 122 N.J. 567 (1991) is a case on-point.

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The issue in North Bergen Action Group was whether a variance from height restrictions was cognizable under N.J.S.A. 40:55D-70(c)(1) (a bulk variance) or 40:55D-70(d) (a use variance). Id. at 570-71. The zoning board granted a variance under subsection c(1); the Law Division reversed, holding that subsection (d) was controlling; the Appellate Division affirmed; and, the Supreme Court reversed and remanded. Id. at 571. In doing so, our Supreme Court discussed the intensity of special reasons which must be adduced to justify a "d" variance. Justice Stein wrote,

Although the grant of bulk variances does not generally require the enhanced quality of proof concerning the negative criteria that is mandated for use variances, see Medici vs. BPR Co., 107 N.J. 1, 21-22 …. (1987), it is self-evident that the greater the disparity between the variance granted and the ordinance's restriction, the more compelling and specific the proofs must be that the grant of the variance 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.' N.J.S.A. 40:55D-70. Because the zoning restrictions are enacted to further municipal planning and zoning objectives, it is fundamental that resolutions granting variances undertake to reconcile the deviation authorized by the Board with the municipality's objectives in establishing the restriction."

[Id. at 578]

Hence, to ascertain the degree of special reasons which must have been adduced by Mr. XXXXXX at the Zoning Board hearing below, the Court must turn for guidance to the Ordinances of West Orange relating to the Township's zoning and planning objectives. West Orange's Master Plan provides, in relevant part,

The purpose of West Orange Master Plan is to do the following:

1. Encourage municipal actions which will guide the long range development of lands within the Township of West Orange in a manner which will promote the health, safety, and general welfare of present and future residents;

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* * * *

9. Promote a desirable visual environment;

* * * *

13. Improve and maintain residential neighborhoods by encouraging rehabilitation of existing dwellings and new residential construction at suitable densities;

* * * *

16. Encourage the continued economic development of the community...

[Pa-170, Vol. II]

In the Board's Resolution, the Board set forth the special reasons supporting its conclusion that a "d" variance was appropriate in this specific case. Those reasons are,

H. The existing empty buildings are in despair and constitute an eyesore for the community;

I. The Applicant, with the proposed changes and additions that will be done to the building, will greatly improve the appearance of the property and this will inure to the benefit of the community;

J. The foregoing will advance the public welfare by reviving a vacant building with a use that is compatible with the previous use of the building in that it is auto related. The location is particularly suited for the proposed use, and

K. The foregoing constitutes special reasons to support the application.

[See Resolution, at Pa-16, pgs. 6-7, H-K.]

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Accordingly, the zoning board's deviation from the master plan was average-to-minimal, not requiring an increased burden upon Mr. XXXXXX. Four of the eighteen criteria set forth as the purposes of the West Orange Master Plan support the Board's decision that a "d" variance was justified to provide the community another prosperous business, to protect the community from the safety hazard related to the vandalized and vacant structure currently on the lot, and to promote a desirable visual environment in the Township. The fact that the Board did not say the word "Master Plan" during the hearing is immaterial because the Resolution is obliviously in accordance therewith.

B. Ample Evidence Was Presented The Board To Justify The Bulk Variances.

The board of adjustment shall have the power to:

c.(2) where in an application or appeal relating to such property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act ….

Id. at 40:55D-70(c)(2).

Thus, "[a] c(2) variance requires a balancing of the benefits and detriments from the grant of the variance." Bressman vs. Gash, 131 N.J. 517, 522 (1993). "Both c(1) and c(2) variances require proof of the negative criteria, which consists of the absence of substantial detriment to the public good, and to the zone plan and zoning ordinance." Id.

In addition to finding that the positive criteria were satisfied, [See Point IV(A), supra, delineating the Board's positive criteria and special reasons] the Board also found, with regard to the negative criteria, that,

L. The negative criteria can be met because the proposed use will not substantially impair the intent and purpose of the Zone Plan since it is consistent with the prior use of the premises;

M. The intended use of the building will improve the appearance and utility of the building and grounds from their state of disrepair;

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N. There would be no adverse impact to the health, safety or welfare of he neighborhood homes;

O. The purposes of the Municipal Land Use Law will be advanced by the grant of the variances requested;

P. The granting of the variances requested will not substantially impair the general purposes of the West Orange Zoning Plan, Master Plan, or Zoning Ordinances of West Orange;

Q. The benefits of the granting of the variances will substantially outweigh any detriment and will not substantially or negatively impact on the surrounding properties and neighborhood;

R. there are no adverse traffic concerns that would result from the granting of the variances sought.

[Resolution, at Pa-16, pgs. 7-8]

Although the Resolution relies, in part, upon purely aesthetic considerations, the Board also found that the lot in its current state is a safety hazard to the community. This unquestionably satisfies the positive/negative criteria because the repair of the site is in the public's best interests and because there can no harm to the public thereby. The fact that aesthetic considerations can satisfy the positive criteria is set forth in more detail in Point IV(E), infra.

As to the fact that the structure is close to the adjacent residences is of little import considering that the structure is already standing. Even if the lot was employed for a retail store, a car wash, or for any other use, the structure would still be adjacent to the residences. Accordingly, the plaintiffs' reliance upon West Orange ordinance § 1458-97 requiring a 75 foot buffer zone is inapplicable. The Court may also note that the ordinance was made effective on December 2, 1997, which was long after this structure had been built.

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C. The Board Made Ample Findings of Fact and Conclusions of Law And There Is No Evidence That The Board Only Granted The Application Because They Liked Mr. XXXXXX As A Person

Plaintiffs have argued, without any supporting evidence, that the Board granted the application only because Mr. XXXXXX is a likable person. As presented by the undersigned in the Superior Court, the Board most likely took such a liking to Mr. XXXXXX because he was willing to abide by any and all conditions that they had for him, including the payment of the tax arrears. The following conditions were placed on the grant of the Resolution, conditions which would not have been imposed if the Board was biased as suggested by the plaintiffs.

1. Some Curbing on Joyce Street needs to be replaced as required in addition to that shown through the driveway on the plans submitted;

2. The pavement in the parking area must be replaced with a new full depth pavement;

3. The curb shall be installed around the perimeter of the parking area;

4. The lot shall be re-graded to prevent the surface runoff from discharging onto adjacent properties;

5. There shall be a five feet sidewalk at least 5 inches above the parking area constructed between any building and the or drive used by the public;

6. Trench drains are needed through the driveways and should be connected to the storm sewer system in the street;

7. The roof leader drains must be repaired and connected to the system as well;

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8. A lighting plan shall be submitted to the office of the municipal engineer showing the photometric patterns for all aerial lighting for approval;

9. The entire building shall be cleaned and repaired. The gutters and leaders shall be repaired as required to be operational. The existing wood front doors, overhead garage doors, and awnings shall be replaced because of their condition;

10. There shall be color coordination to blend with the existing brick and siding to the reasonable satisfaction of the Township Planner;

11. The sign apparatus on the roof must be removed;

12. The building materials used shall be agreeable to the Township Planner;

13. The landscaping and planting detail shall be submitted to the Township Planner for approval of a minimum size of 6 feet tall to be planted along the proposed wrought iron fence along Valley Road and the existing residence to the northeast;

14. The two existing trees along Valley Road in front of the property and the one along Joyce Street near the corner with Valley Road shall remain;

15. Planter shall be installed in front of the windows along Valley Road as approved by the Township Planner;

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16. All plantings shall be planted in the healthy and vigorous manner;

17. The landscape architect of Applicant shall inspect the planting after they have been installed and report in writing in a timely fashion to the Township Planner of the findings. All deficiencies reported shall be promptly connected by the Applicant to the reasonable satisfaction of the landscape architect and the Township Planner;

18. The planting shall be maintained in perpetuity in accordance with the approved plan;

19. Hardwood mulch shall be used around all plantings and trees installed by Applicant;

20. All plantings and trees that die shall be replaced with plantings and trees of equal or better quality in accordance with the approved landscape plan;

21. All approvals herein are conditioned upon the approval of the West Orange Fire Department;

22. All Findings of Fact and Conclusions of law set forth herein are deemed conditions that are binding upon the Applicant;

23. No building permit shall be issued unless taxes are current;

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24. The deed of conveyance to Chris's XXXXXX, Inc., shall contain the following deed restrictions:

A. Appropriate installation and noise making materials and safeguards shall be installed and maintained in the building of operation at all times so as to achieve the maximum protection against noises emanating from the building so as to render it soundproof;

B. All doors of building of operations shall remain closed during hours of operation;

C. To alleviate and prevent fumes from leaking into the area the paint booth maintained on the premises shall be located in the far right corner furthest away from Joyce Street and shall be the state of the art paint booth wherein fumes are directed downward to a chamber and subsequently filtered and filters are cleaned weekly;

D. In addition to the foregoing the lots on this site must be consolidated in the said deed of conveyance;

25. prior to closing of title the Applicant through his attorney shall submit to the attorney for the Zoning Board of West Orange for approval as to form the proposed deed containing the required restrictions and the lot consolidation. In the vent that the form of same do not meet with the approval of the board attorney, they should be modified as required to be satisfactory;

26. Following the closing of title by Chris' XXXXXX, Inc., a copy of the deed containing the recording information shall be filed with the secretary of the Zoning Board of the Township of West Orange as soon as the deed is received by the attorney for the Applicant, Chris' XXXXXX, Inc.;

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27. The Applicant shall execute prior to the issuance of a Certificate of Occupancy an Affidavit of Compliance certifying they have fulfilled all conditions set forth which shall be to the satisfaction of the Township Planner, Engineering Department and the Building Department of the Township of West Orange who shall be furnished with a copy of the resolution. No Certificate of Occupancy shall be issued until receipt of an executed Affidavit of Compliance approved and signed by the Zoning Official

[Pa-16, Vol. II, at pgs. 11-14]

D. The Board Did Not Err By Taking Aesthetics Into Consideration In Granting The Application.

Plaintiffs have erroneously argued in their legal brief that per se aesthetics can never be the reason for granting a resolution. Although the word "aesthetics" does not appear anywhere in the MLUL, our Supreme Court has recognized that, "Among the purposes of Municipal Land Use Law …. [is] the promotion of 'a desirable visual environment through creative development techniques and good civic design and arrangements, N.J.S.A. 40:55D-2(i)."

Plaintiffs' argument is merely one of semantics. The word "esthetic" necessarily means, by definition, "sensitive to art and beauty; showing good taste; artistic." Webster's New Universal Unabridged Dictionary (Second Edition). In essence, plaintiffs' argument is that a one hundred thousand dollar Dodge Viper, Ferrari, or classic corvette, in the showroom window of a state-of-the-art facility, is not aesthetic. Although some may not find elaborate race cars to be beautiful, who would find to be beautiful the eyesore [1T-24:5-7; See Resolution, at Pa-16, Vol. II, pgs. at 6-7] which is currently in place at 494 Valley Road and which is currently encumbered with tax liens and will most likely remain vacant in such condition for many years to come.

Again, in Bressman, supra, the Court held that the Planning Board did not abuse its discretion in granting a c(2) variance for the sole reason that the variance, which sought a resolution permitting the applicant to build a house which was twenty-eight feet from the property to the rear, whereas it should be sixty feet, advanced aesthetic purposes in that the house conformed to those surrounding it, notwithstanding that it was on a different shaped piece of property. Justice Pollock wrote,

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When contemplating a c(2) variance, a local land-use board may consider the recognized purposes of zoning. Kaufmann, supra, 110 N.J. at 563, 542 A.2d 457. One such purpose is "a desirable visual environment." N.J.S.A. 40:55D-2. In this case, the Planning Board properly considered the aesthetic effect of Gash's proposal in deciding whether the grant of the variance would advance that purpose. Although the record does not necessarily compel the grant of either a c(1) or (2) variance, we find that the Board acted within its discretion in granting the application.

[Id. at 530 (Emp. Supp.)]

Although plaintiffs may disagree with the Board that a state-of-the-art facility displaying hundred thousand dollar race cars is both more aesthetically appealing and more in the public's best interest than a boarded-up, vandalized, and abandoned building, as so stated by Justice O'Hern, "One man's work of art may be another man's eyesore." Burbridge vs. The Governing Body of the Township of Minehill, 117 N.J. 376, 399 (1990)(Justice O'Hern dissenting).

If plaintiffs are of the position that our Supreme Court is somehow incorrect merely because the word "aesthetics" does not appear anywhere in the Municipal Land Use Law, then that is a matter that plaintiffs must address to that Court. For the time being, this Court should uphold this reasonable Resolution of the West Orange Planning Board.

CONCLUSION

Defendant XXXXXX has offered to purchase a dilapidated piece of property in West Orange that has fairly been described by Zoning Board members as an eyesore and a danger to the community. Defendant XXXXXX has offered to pay all of the outstanding back taxes and to comply with any and all conditions imposed by the Zoning Board. At the time of the initial hearing on February 17, 2000, however, there was no offer of a deed restriction which would prevent a subsequent owner of the property from violating the Board's terms and conditions. For that reason, Board Members XXXXXX and XXXXXX voted against XXXXXX's application. Upon an April 13, 2000, reconsideration, however, by which time the idea of a deed restriction had emerged, XXXXXX and XXXXXX changed their votes because it became apparent that they could grant XXXXXX's application while still ensuring that the property would not be abused by subsequent owners. The change in votes was well within their discretion and was entirely reasonable considering that their non-biased reasons are adequately set forth in the record. This was the only reason that induced the Superior Court to invalidate the Board's Resolution granting XXXXXX's application, subject to twenty-seven stringent conditions. Accordingly, the trial court's Final Judgment invalidating the Board's Resolution as arbitrary and capricious should be reversed and the Board's Resolution should be reinstated.

Respectfully Submitted,

LAW OFFICE OF XXXXXX J. XXXXXX, JR., ESQ.,


__________________________________
XXXXXX J. XXXXXX, Jr., Esq.
Attorney for Plaintiff

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