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Haggerty v. Red Bank Borough Zoning Board of Adjustment

May 22, 2006

GERALD G. HAGGERTY AND MARY JANE HAGGERTY, KATHY LOU COLMORGEN, KAYE ERNST, JEFFREY M. WEINER, RUDY VENER AND GINA VENER, AND DAVID PROWN, PLAINTIFFS-APPELLANTS,
v.
RED BANK BOROUGH ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND BUILDING & LAND TECHNOLOGY, A/K/A BUILDING & LAND TECHNOLOGY INC., DEFENDANT, AND PALATIAL HOMES AT RED BANK, L.L.C., DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1088-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 29, 2006

Before Judges Conley, Weissbard and Sapp-Peterson.

Plaintiffs, landowners in the Borough of Red Bank (Borough), appeal from the dismissal of their complaint in lieu of prerogative writs challenging decisions of defendant, Red Bank Borough Zoning Board of Adjustment (Board), granting the bifurcated application of Building and Land Technology (BLT) for a "d"/density variance, and thereafter for bulk variances and site plan approval to construct condominiums and townhouses. Because of an impermissible conflict of interest on the part of the Board's presiding officer, we reverse and remand for new hearings.

BLT was the contract purchaser of real property located along Monmouth, West, and Oakland Streets in the Borough, also known as Block 42, lots 1, 2, 2.01, 3, 4, 19, and 20 (the property). Lots 1, 2, 2.01, 3, and 4 are located in the Borough's Business/Residential (BR)-1 zone; lots 19 and 20 are located in the BR-2 zone. The combined lot area is 52,511 square feet, including 39,250 square feet in the BR-1 zone and 13,261 square feet in the BR-2 zone. A variety of residential and commercial uses surround the project site including, but not limited to, the Red Bank Train Station.

On July 18, 2002, Patrick Nulle, on behalf of BLT, submitted a development application for a proposed project of two condominium buildings of sixteen units, with each unit consisting of 1680 square feet, to be constructed on lots 1, 2, 2.01, 3, and 4. The application indicated that the proposed condominiums would replace an existing gas station/car wash on the property. The application included a sworn statement dated July 16, 2002, from Frank M. Torra stating that he owned lots 1, 2, and 2.01 and that he approved and agreed to the application, and a sworn statement dated July 17, 2002, from Maureen Grimaldi stating the same as to lots 3 and 4.

On July 29, 2002, the Director of Planning and Zoning denied the development permit, noting that the applicant needed to go before the Zoning Board for a "d"/density use variance and site plan approval.

On October 25, 2002, Torra signed another statement confirming that he owned lots 19 and 20, and approved and agreed to the development application. Apparently around the same time, Nulle submitted an undated disclosure-of-ownership form stating that he was a sole proprietorship, that he held a 100% ownership interest in connection with the application, and that he resided at 138 Bodman Place in the Borough. BLT's name did not appear on the form.

BLT subsequently reapplied to the Zoning Board for a density variance, bulk variances, and site plan approval associated with a request to construct a thirty-unit condominium complex and a five-unit townhouse development. BLT elected to bifurcate its application and, therefore, first sought to obtain the density variance.

On December 5, 2002, defendant-intervenor, Palatial Homes at Red Bank, L.L.C. (Palatial) entered into an agreement with Nulle under which BLT agreed to assign to Palatial its right to purchase the property contingent on BLT's obtaining the necessary land-use approvals for construction of thirty-five residential units.

I.

A. The Density Variance

The Zoning Board held public hearings on BLT's application for a density variance, N.J.S.A. 40:55D-70d, on December 19, 2002, January 16, 2003, and February 6, 2003. Although BLT did not seek site plan approval at that point, it submitted preliminary and final site plans dated September 30, 2002 to the Board. Approximately eight individuals at the hearings expressed opposition to the application, including plaintiffs Gerald Haggerty and Kathy Colmorgen. BLT presented five witnesses: Marta Pierson Villa, a revitalization consultant; Anthony Ercolino, a licensed architect; Thomas Santry, a licensed land surveyor; Nicholas Verderese, a traffic engineer; and Andrew Janiw, a professional planner.

At the first hearing, Board Chairman Michael DuPont recused himself, stating that he did so to avoid an appearance of conflict because he or his partner at the law firm of McKenna, DuPont, Higgins & Byrnes (McKenna DuPont) represented "one or both" of the applicants "a number of years ago." DuPont did not elaborate further. As a result of DuPont's recusal, Vice-Chairperson Lauren Nicosia, whose father, retired Judge Benedict R. Nicosia, served in an "of counsel" capacity at the same law firm, served as acting chairperson with regard to BLT's application.

Because of the grounds on which we decide this appeal, we have no need to detail the evidence presented at the several hearings. At its hearing on February 6, 2003, the Board conditionally approved BLT's application for a density variance.

On March 20, 2003, the Board adopted, by a six-to-one vote, a sixteen-page resolution memorializing its conditional approval of the density variance for a thirty-unit condominium complex and a five-unit townhome development. Among other things, the Board found that the proposed development was an appropriate use for the site, was consistent with the Borough's master plan, and was compatible with the surrounding area. The Board expressly conditioned its approval upon BLT's obtaining appropriate site plan and bulk variance approvals, and all necessary approvals from outside agencies. No appeal was filed challenging the Zoning Board's density approval.

B. Site Plan Approval and Bulk Variances

Subsequently, BLT submitted its application to the Board for approval of its site plan and bulk variances. N.J.S.A. 40:55D-70c.*fn1

BLT sought bulk variances for minimum lot area, front and side-yard setbacks, buffer areas, and parking as well as design waivers. Chairman DuPont again recused himself, stating that he formerly represented the owner of the gas station on the property in some of his business dealings. On December 11, 2003, the Board approved the application as submitted, finding that the project would have no detrimental effect on local property values or the health and welfare of the community.

On January 22, 2004, the Board adopted a thirty-seven-page resolution granting the application as presented and modified for site plan approval and bulk variances subject to certain enumerated conditions and the applicant's compliance with all other appropriate rules, regulations, and ordinances. The modified application called for the construction of a five-unit townhouse development consisting of one building (Phase I) and twenty-nine upscale residential units including a twenty-four-unit condominium complex consisting of two buildings (Phase II). As such, the proposed development had a lower density than that approved during the first portion of the bifurcated application hearing. BLT's application also sought to consolidate Block 42, lots 19 and 20 so as ...


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