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Cerebral Palsy Center v. Mayor and Council of the Borough of Fair Lawn

January 27, 2005

THE CEREBRAL PALSY CENTER, BERGEN COUNTY, INC., TRADING AS CHILDREN'S THERAPY CENTER, PLAINTIFF-APPELLANT,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF FAIR LAWN, BOROUGH OF FAIR LAWN, AND FAIR LAWN ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, BER-L-2820-03.

Before Judges Wefing, Fall and Payne.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2004

Plaintiff, The Cerebral Palsy Center, Bergen County, Inc., trading as Children's Therapy Center ("Center"), appeals from the trial court order dismissing its complaint in which it challenged the legality of a Fair Lawn ordinance. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Fair Lawn has adopted an ordinance, § 125-60.1 of the Land Development chapter of its municipal code, establishing the position of Public Advocate, to be appointed by the municipal council. Fair Lawn Code, § 125-60.1 (July 15, 2000). The ordinance creates separate positions of Public Advocate for Fair Lawn's Planning Board and its Zoning Board of Adjustment. Because the ordinance gives each position identical responsibility and authority, there is no need to distinguish between the two in our analysis of the issues.

Under Subsection C of the ordinance, the Public Advocate is authorized to appear before the respective boards, as well as before other federal, state, county and municipal courts and agencies"in proceedings of substantial public importance in which he or she shall determine, in his or her sole discretion, subject to this section, to warrant representation and advocacy." § 125-60.1(C).

Subsection E of the ordinance defines matters of substantial public importance in the following manner.

(1) Substantial public importance shall be defined or limited to applications where the applicant is seeking relief in any one of the following areas, provided that the application also affects the health, safety or general welfare of the Borough of Fair Lawn or its population:

(a) Applicant is seeking a use variance.

(b) Applicant is seeking a major subdivision.

(c) Applicant seeks three or more variances.

(d) Applicant seeks a variance for parking.

(e) Applicant seeks a variance ...


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