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Himmelstein Investments, L.L.C. v. Township of Stafford Planning Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 27, 2007

HIMMELSTEIN INVESTMENTS, L.L.C., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF STAFFORD PLANNING BOARD AND HIMMELSTEIN ASSOCIATES, L.L.C., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1442-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2007

Before Judges A. A. Rodríguez and C. S. Fisher.

Himmelstein Investments, L.L.C. (Investments) appeals from the Law Division judgment dated June 2, 2006, which: (1) dismissed its action in lieu of prerogative writs; and (2) upheld the Township of Stafford Planning Board's (Board) decision approving the site plan, variance and design waiver applications made by Himmelstein Associates, L.L.C. (Associates). Judge Marlene Lynch Ford issued a comprehensive written opinion on May 31, 2006. We affirm.

These are the salient facts. Investments is owned by Richard Himmelstein, the brother of Associates owner, Robert Himmelstein. Associates and Investments own adjacent property along Route 72 East. The property sits in Stafford Township's Highway Commercial zone.

In 2002, Associates applied to the Board for preliminary and final major site plan approval to construct a two-story commercial building. After the Board approved the application, Investments, which owns an adjacent property, filed an action in lieu of prerogative writs seeking to vacate the Board's approval. Judge James D. Clyne vacated the Board's approval. Thereafter, Associates revised their site plan and filed a second application, which is the subject of this appeal.

After holding two hearings, the Board approved the application with conditions. Again, Investments challenged this decision in the Law Division. Judge Ford found that the Board's decision in approving the site plan and granting the various variances and design waivers was adequately and sufficiently supported by the record; consistent with the statutory guidelines pursuant to N.J.S.A. 40:55D-70c; and did not constitute an abuse of discretion or arbitrary, capricious and unreasonable conduct.

On appeal, Investments contends that the Board acted arbitrarily in granting variances pursuant to N.J.S.A. 40:55D-70c. Specifically, it argues that Associates failed to establish any statutory basis for granting the sign variances or any statutory basis for granting the green-space variance. Investments also contends that deviations from on-site parking requirements required a variance and could not be waived; furthermore, even if they could be waived, Associates failed to meet the statutory criteria. Investments further contends that Associates failed to meet the buffer requirements contained in TOWNSHIP OF STAFFORD, NJ, CODE § 130-50F (2007), and did not reasonably justify the need for the remaining waivers and exceptions.

We reject these contentions and affirm substantially for the reasons expressed by Judge Ford in her May 31, 2006 written opinion.

Affirmed.

20071227

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