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Borough of Roselle Park v. Township of Union

Decided: December 11, 1970.

THE BOROUGH OF ROSELLE PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
THE TOWNSHIP OF UNION, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF UNION AND UNION SENIOR CITIZENS HOUSING CORPORATION AND LOUIS J. GIACONA, BUILDING INSPECTOR OF THE TOWNSHIP OF UNION, DEFENDANTS



Feller, J.s.c.

Feller

This is an action in lieu of prerogative writs instituted by the Borough of Roselle Park challenging the granting of a variance by the Township Committee of the Township of Union.

Plaintiff contends that it is a municipality adjoining the Township of Union and that defendant Union Senior Citizens Housing Corporation made application to the Union Township Zoning Board of Adjustment for a recommendation of a variance to construct a three-story senior citizens' housing project. The application involved property known as Index 15, Block 6, Lot 53, commonly known as No. 35 Sumner Avenue, in a Residence A zone in the Township of Union. Plaintiff further contends that the property is within 200 feet of the boundary line between Roselle Park and Union Township, as well as property located in Roselle Park.

On December 8, 1969 a hearing took place before the Township board of adjustment. Witnesses were heard in behalf of the applicant, and a number of objectors, including representatives of plaintiff, appeared at the hearing and noted objections to the application. Proceedings were adjourned

to December 22, at which time the board of adjustment adopted a resolution recommending grant of a variance. The township committee granted the variance on February 3, 1970.

This action was filed challenging the validity of the original recommendation of the board of adjustment as not being supported by the evidence introduced at the hearing and challenging the granting of the variance by the township committee, and noting that the grant of said variance failed to meet the requirements of the applicable statutes. Plaintiff further contends that in recommending the granting of the variance the board of adjustment ignored the comments made by the Union County Planning Board set out in a letter dated December 8, 1969, which letter was delivered to the board of adjustment on said date. Plaintiff contends that the granting of the variance will increase traffic congestion and cause flooding conditions in Roselle Park and also add to the high population density proposed for the area.

Defendants contend that the Borough of Roselle Park has no legal standing to bring this action; that only property owners have such standing. Defendants further contend that the application of the Union Senior Residents Housing Corporation for a variance was properly granted for the erection of a three-story mid-rise apartment building of fireproof masonry construction; that the objections made by plaintiff before the Township board of adjustment were without valid factual or legal basis, and that plaintiff failed to submit any legal evidence to support its contentions.

Defendants further contend that the board of adjustment considered all of the testimony and other evidence before it in making its findings, which findings were based upon ample evidence appearing at the hearing and fully supported the findings and determination of the Board of adjustment.

Defendants contend that the granting of the variance by the township was proper, and the resolution of the board of adjustment and township committee based upon their respective

findings and approval concluded that there were special reasons for the granting of the requested variance, and that the granting of such variance would not be detrimental to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance of the township.

It is further contended by defendants that a letter from the Union County Planning Board has no binding authority at a hearing before the board of adjustment.

The resolution of the Township Committee, in granting the variance, concurred in the resolution of the Board of Adjustment. [The resolution not reproduced sets out at length the factual findings on which the board found that there were sufficient special reasons for granting the variance and that there would not be substantial impairment to the public good or to the intent and purpose of the zone plan and zoning ordinance of the township.]

The transcript of the proceedings of the meeting of the township committee on February 3, 1970 indicates that it examined the record and exhibits and plans and studied the testimony of the experts and on the basis of this the township committee granted the variance.

Roselle Park then filed this action in lieu of prerogative writs challenging the action of the board of adjustment in recommending the granting of the variance and the action of the township committee in granting the variance, and demanding that their actions be reversed and set aside. Plaintiff also demands that the Township building inspector be enjoined from issuing a building permit for the project.

I

Defendants contend that Roselle Park lacks standing to challenge the granting of a zoning variance by the Township of Union in the instant case. In order to determine whether a neighboring municipality has standing to contest ...


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