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Scully-Bozarth Post #1817 of the Veterans of Foreign Wars of the United States v. Planning Board of the City of Burlington

July 21, 2003

SCULLY-BOZARTH POST #1817 OF THE VETERANS OF FOREIGN WARS OF THE UNITED STATES, PLAINTIFF-CROSS-APPELLANT,
v.
PLANNING BOARD OF THE CITY OF BURLINGTON, DEFENDANT-CROSS-RESPONDENT.
MITCHELL AND SAMUELLA COHEN, KARL LAUER AND JEAN LAUER, JACK AND DIANE BLACKEBY, PAUL AND TINA FITZPATRICK, HELENE HALL AND JACK JERECHKO, PLAINTIFFS-APPELLANTS,
v.
SCULLY-BOZARTH POST 1817 VFW, A NONPROFIT ORGANIZATION, BURLINGTON CITY PLANNING BOARD, A MUNICIPAL ENTITY, DEFENDANTS-RESPONDENTS, AND MATTHEW WISNIEWSKI, ZONING OFFICER OF THE CITY OF BURLINGTON, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-891-02.

Before Judges King, Wefing and Lisa.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued May 13, 2003

In this land use dispute, the Burlington City Planning Board (Board) denied the application of Scully-Bozarth Post #1817 of the Veterans of Foreign Wars of the United States (VFW) to expand a pre-existing nonconforming use by placing a surplus army tank on the property containing its gathering hall. The property is located in an R-1 zoning district, and in the City's Historic District. The tank would be permanently placed on the property as a memorial to veterans of the armed forces.

A number of neighboring residents (objectors) opposed the variance at the proceedings before the Board. Ten of those individuals, living in six homes near the VFW's property, participated in the trial court proceedings by virtue of a separate action they filed against the Board and the VFW. Their action was consolidated with that filed by the VFW against the Board, seeking to overturn the denial of its variance application.

The trial judge granted summary judgment in favor of the VFW, reversing the Board's action. The judge found the Board's action improper because it was taken without prior discussion or deliberation and because it was unsupported by the record. The order directed the Board to grant the use variance application and conduct further hearings to consider site plan review, with or without conditions. The order also denied the objectors' summary judgment motion, which sought to dismiss the VFW's action, to order removal of the tank (which had been placed there as a result of prior proceedings, which we will discuss below), and to allow the objectors to dismiss their remaining claims. The Board did not file any pleadings or participate in the trial court proceedings. Before us, the Board has not participated, except to inform us it relies on the position of the objectors.

The objectors appeal, arguing (1) the Board's denial of the VFW's use variance application is supported by the record, (2) the Board's resolution was properly adopted and memorialized and it represented the Board's collective decision, and (3) the Board properly denied the VFW's request for reconsideration. The VFW cross-appeals, arguing (1) the trial court erred in allowing the objectors to participate because they did not file a proper intervention motion, and (2) in the event we reverse the summary judgment motion in favor of the VFW, we should remand the matter to the trial court or the Board for further proceedings. We agree with the objectors and reverse on the appeal. We affirm on the cross-appeal.

I.

The VFW property is located at 142 Riverbank.*fn1 The lot contains a building owned and used by the VFW as a gathering hall since 1937.*fn2 The building was originally built in the nineteenth century as a three-story mansion. In 1964, the upper stories were in a poor state of repair and were removed. The building is now a one-story masonry building, nineteen feet high. It is open daily for various activities, including bingo once a week. The lot is about 338 feet by 203 feet, consisting of about 1.6 acres. The property is in the R-1 zoning district, Burlington City's highest residential district. It is also within the city's Historic District. Because the VFW's use predated the city's zoning ordinances, it enjoys the status of a pre-existing nonconforming use. Only single family detached dwellings are a permitted use in the R-1 district. Conditional uses permitted are schools and places of worship.

The property is bordered by the Delaware River to the north. Between the property and the river is Delaware Street and a public promenade along the river. The building sits back 123.5 feet from the street. The VFW building, along with others in proximity to it, is somewhat elevated above the street and promenade, with a large expanse of lawn. A number of eighteenth and nineteenth century mansions are located in this immediate area. There are also other nonconforming uses, including the Catholic Welfare office building immediately to the east of the VFW building and a three-story building housing three or four apartments immediately to its west. Beyond the apartment building, there are four homes, and then Saint Mary's School. Some distance beyond the school is the Burlington-Bristol Bridge, crossing into Pennsylvania.

The proposed location of the tank is in front of the gathering hall, facing the river. The application sought approval for the placement of the tank on a concrete pad measuring sixteen feet by thirty feet. The memorial would include five flag poles, each commemorating one of the military branches. There would also be lighting, to illuminate the tank at night, and landscaping. The tank, would be"demilitarized," by removing its machine guns, rendering the tracks immovable, removing the engine and welding shut the hatches. In its demilitarized state, it would measure ten feet high, thirty feet long and fifteen feet wide. It would weigh fifty-two tons.

II.

At the time of the variance application, in the Fall of 2001, that is the subject of this appeal, the concrete pad and tank had already been in place for about two years as a result of earlier proceedings. This appeal marks the second occasion on which this court has considered this case. We review the prior history.

On April 12, 1999, the VFW applied to the Board seeking"Sketch Plan Review" and"Final Site Plan Review" for placement of the tank. The Board conducted hearings and considered evidence in favor of and opposed to the proposal. The objectors now before us voiced their opposition then. The Board concluded the application satisfied the criteria for a minor site plan, was an accessory use, and did not require a use variance. The Board approved the application on that basis. The objectors*fn3 filed an action in lieu of prerogative writs against the VFW and the Board. The Law Division judge reversed, finding that the Board's action was jurisdictionally deficient and the tank memorial was not an accessory use. The tank had already been installed. The judge's final order, entered March 7, 2000, required removal of the tank unless within forty-five days the VFW either appealed or filed a new application to the Board, in which case the removal requirement would be stayed. The VFW appealed, and the tank remained.

On May 21, 2001, a panel of this court affirmed in an unpublished opinion. Cohen v. Scully-Bozarth Post 1817 VFW (A-3858-99T1). We determined that installation of the tank memorial constituted an expansion of a nonconforming use and required a use variance under N.J.S.A. 40:55D-70d(2). We continued the stay, conditioned upon the filing within thirty days of an application to expand the nonconforming use. The VFW timely filed its application.

The Board conducted hearings on October 24, 2001 and December 19, 2001. The Board considered the transcribed testimony and other evidence from the earlier hearings. It viewed videotapes of the VFW property and surrounding neighborhood. The Board members had the opportunity to see the tank in position and thus view first hand its appearance and relation to the surrounding area. The objectors and the VFW were represented by counsel. A number of neighboring property owners spoke in opposition, complaining that the circa-1970 tank, by its nature, was not appropriate in this historic eighteenth and nineteenth century setting. They did not contend that some form of memorial would not be appropriate on the VFW property; they contended that any such memorial should be in conformity with the historic characteristics of the neighborhood. The objectors also complained that the tank is stark and ugly. A number of city residents spoke in favor of the tank memorial as an appropriate commemoration of Burlington residents who died in service to our country and to those who serve in the military. These individuals felt the location on the VFW property was appropriate and did not adversely affect the neighborhood.

The objectors presented the transcribed expert testimony of Edward E. Fox, III and his written reports from the 1999 proceedings and the live testimony of Thomas A. Scangarello, both professional planners with extensive experience. Fox is the consultant to the city's Historic Preservation Commission (Commission). He issued his original ten-page report on April 30, 1999 and a nine-page revised report on May 13, 1999. The purpose of his reports was to comment to the Board, on behalf of the Commission on"how the proposed undertaking would affect an historic site or architectural significance." Under the city's Land Use Ordinance, the planning and zoning boards are required to submit applications for development within the Historic District, such as the use variance involved here, to the Commission for review and comment.

Fox issued his initial report before the Commission met. The revised report came after the Commission met on May 5, 1999. Any differences are accounted for by input from the Commission members and discussion of the matter at the Commission meeting. The Board relied on the revised report, constituting the official comment of the Commission.

Fox analyzed the site and its relationship to its surroundings. He noted the VFW property is an historical site within a local, state and national register historical district, listed as a contributing property. The Commission declined to issue a certificate of appropriateness for the tank memorial. At its May 5, 1999 meeting, the Commission voted to recommend that the Board deny the VFW's application because, under the criteria of the Historic Preservation Ordinance, it would adversely affect the historic district.

According to Fox, the tank memorial failed to satisfy four of the five criteria in the ordinance for a ...


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