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Flopark Company, LLC v. Board of Adjustment

November 9, 2007

FLOPARK COMPANY, LLC, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT, BOROUGH OF FLORHAM PARK, DEFENDANT, AND LIFE TIME FITNESS, INC. DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-660-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 30, 2007

Before Judges Coburn, Fuentes and Grall.

Defendant Life Time Fitness, Inc. ("Life Time") applied to defendant Board of Adjustment of Florham Park (the "Board") for a use variance, N.J.S.A. 40:55D-70(d). Under the express authority provided by N.J.S.A. 40:55D-76(b), Life Time elected to limit its application to the desired use variance and to later pursue site plan approval before the local planning board. Plaintiff, Flopark Company, L.L.C. ("Flopark") actively opposed the application before the Board.

After numerous hearings, the Board voted unanimously to grant the use variance. The Board's twenty-five page resolution carefully reviewed the facts, responded to the arguments offered by Flopark, and provided findings and conclusions fully satisfying the relevant statutory standards for the grant of a use variance. Nonetheless, Flopark sought judicial relief by way of an action in lieu of prerogative writs. The case was heard by Judge Bozonelis, who ruled in favor of Life Time in a thorough and well-reasoned oral opinion delivered on August 4, 2006.

On appeal, Flopark offers the following arguments:

POINT I

THE TRIAL COURT DECISION AFFIRMING THE GRANT OF THE USE VARIANCE WAS ERRONEOUS BECAUSE SPECIAL REASONS WERE NOT PROVED.

A. Positive Criteria/Special Reasons Treatment By Trial Court.

B. The Board Of Adjustment Findings Similarly Do Not Provide The Basis For Granting The Positive Special Reasons Use Variance.

C. Promoting Recreational Uses In General Is Insufficient To Support The Positive Criteria.

D. Standard of ...


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