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Ness v. Off-Shore Facilities Corp.

Decided: January 6, 1982.

STANLEY C. VAN NESS, NEW JERSEY PUBLIC ADVOCATE, PLAINTIFF,
v.
OFF-SHORE FACILITIES CORP., BOARD OF ADJUSTMENT OF THE CITY OF ATLANTIC CITY, AND BOARD OF COMMISSIONERS OF THE CITY OF ATLANTIC CITY, DEFENDANTS



Manuel H. Greenberg, J.s.c.

Greenberg

The central question in this case is whether the pertinent provisions of the Casino Control Act preempt the Atlantic City Zoning Board of Adjustment from granting a variance to allow construction of a casino hotel on land planned and zoned for residential development. The matter comes before the court on cross-motions for summary judgment by plaintiff Public Advocate and defendant Off-Shore Facilities Corp. (Off-Shore), the applicant for recipient of such a variance. There is no dispute as to the facts which are material to a decision on the motions.

Off-Shore owns 15 acres of land near the marina in the northern part of Atlantic City. A casino hotel was proposed to the Atlantic City Planning Board on January 3, 1979, at which time the site was zoned L-1. At a preapplication conference, the planning board solicitor advised that a casino hotel was not a permitted use in the L-1 zone. Off-Shore then, on February 2, 1979, applied to the zoning board of adjustment for a use variance. The board found that casino development was a permitted use. Meanwhile, the zoning for the site was changed

by the planning board to RM-1, which permitted only two- to three-story apartment-type dwellings. The Atlantic City Board of Commissioners adopted the master plan and zoning ordinance on May 31, 1979 with the new RM-1 zoning for Off-Shore's property.

Off-Shore again applied for a use variance, which was granted by the board of adjustment on July 13, 1979. The board of commissioners voted two to one to reverse, with two abstentions. Since N.J.S.A. 40:55D-17(e) requires an absolute majority vote of the governing body in order to overturn the decision of the board of adjustment, the net effect was an affirmance of the grant of the variance.

Plaintiff filed the present action seeking to have reversed the action of the zoning board of adjustment. On July 5, 1980 Judge Gruccio remanded the matter to the board of adjustment for "findings of fact and legal conclusions" consistent with the Municipal Land Use Law and the Atlantic City zoning ordinance based on the transcript of the first hearing. On September 5, 1980 the board of adjustment again voted to grant the variance.

As originally enacted in 1977, N.J.S.A. 5:12-84(e) provided:

Each applicant shall submit an impact statement which shall include . . . site plans which establish that the proposed facilities comply in all respects to the requirements of this act, of the master plan and zoning ordinances of Atlantic City. . . .

Moreover, N.J.S.A. 5:12-133(b) provides:

If any provision of this act is inconsistent with, in conflict with, or contrary to any other provision of law, such provision of this act shall prevail over such provision and such other provision shall be deemed to be amended, superseded or repealed to the extent of such inconsistency or conflict. Notwithstanding the provisions of any other law to the contrary, no local government unit of this State may enact or enforce any ordinance or resolution conflicting with any provision of this act or with any policy of this State expressed or implied herein, whether by exclusion or inclusion. . . .

Thus, the Casino Control Act, as originally enacted, indicated an intent that casino development be in accord with a master plan. There is no factual dispute that the site in question was set aside for low-density residential development in ...


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