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Garner v. Mountainside Board of Adjustment

Decided: March 14, 1986.

LEONARD W. GARNER, PLAINTIFF,
v.
MOUNTAINSIDE BOARD OF ADJUSTMENT, DEFENDANT



Feller, J.s.c. (retired and temporarily assigned on recall).

Feller

This is an action in lieu of prerogative writs appealing the action of the Mountainside Board of Adjustment. The property in question is located at 1422 Route 22 in Mountainside and plaintiff herein is a contract purchaser of said property. Plaintiff appeared before the board seeking "bulk variances" under N.J.S.A. 40:55D-70c.

The Legal And Factual Contentions Of Plaintiff.

Plaintiff applied for "C" (bulk) variances for construction of an office building. The application was presented at two public hearings (April and May 1984). The board voted at its June 1984 meeting as follows: three members for approval (all three had attended the two previous hearings), two members for disapproval (one of whom had attended the two previous hearings and one of whom had not attended the first hearing) and two abstaining.

Plaintiff contends that under the applicable statute and case law, the above vote constitutes an approval of the variance application, although the abstainers did not abstain for conflict of interest.

Defendant board at its July 1984 meeting adopted two resolutions, each reporting the 3-2 vote; one concluded by its terms that the same constituted an approval of the application and the other concluded by its terms that the same constituted a disapproval of the application.

Plaintiff seeks enforcement of the approving resolution and striking of the disapproved resolution. If the court should determine that the vote constituted a denial of the variance application, plaintiff seeks reversal on the grounds that the denial was arbitrary, unreasonable and capricious. Plaintiff demonstrated positive and negative criteria. Of the two members voting against the application (one of whom was incompetent

to vote -- Bradshaw -- because he had not attended the first hearing), one bottomed his negative vote on his irrelevant conclusion aliunde the record that Mountainside had a surplus of office buildings (rather than considerations of hardship and negative criteria).

The Legal And Factual Contentions Of Defendant Mountainside Board Of Adjustment.

The Mountainside Board of Adjustment had seven permanent members during the time that this application was heard. The chronological breakdown when hearings were held in connection with this application follows.

Meeting held April 9, 1984.

Present were: Chairman, C. George Novitt

Mr. Hancock

Mr. Heymann

Mr. Kelly

Mr. Largey

Mr. Merenstein

Mr. McNamara

Mr. Tuohy

Plaintiff presents an application to the Mountainside Board of Adjustment for property known as 1422 Route 22, Lot 9 in Block 3-C. The applicant seeks to construct an office building in the OB zone, which permits office buildings, but would be in violation of the Mountainside Zoning Ordinance in the following respects:

Section 1014(c). Required Conditions. Front yard of not less than 50 feet. Applicant was showing 36-foot setback.

Section 1014(c)(7). Buffer Area. A 20 foot buffer area required. Applicant was showing some areas two feet, other areas eight feet.

Section 914. Article 2 Definitions. No. 245. Parking spaces are to be rectangular spaces 9 feet wide and 20 feet long.

Applicant is proposing the parking spaces to be 9 feet wide and 19 feet long.

Section 914(7). Driveway. The driveway entrance and exit on to New Providence Road requires a 24-foot width. Applicant is proposing a 20-foot width.

The peculiarity of the layout of this property shows a 24 foot frontage on New Providence Road, a county road, which the applicant seeks to use as a driveway access to and from the subject property.

The first plan as presented showed no ingress or egress from Route 22 and provided that all ingress and egress to the subject property would be from New Providence Road.

The proposed building is 16,945 square feet which at one parking space per 300 square feet would require 57 parking spaces. The applicant was proposing 69 parking spaces on the original plan, which would be less than the required 9' x 20', namely, 9' x 19'.

Meeting held May 14, 1984.

Present were: Vice Chairman, ...


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