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Pretto v. Township of Berkeley Heights

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2009

JOHN C. PRETTO, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP OF BERKELEY HEIGHTS, DEFENDANT-RESPONDENT, AND HOTEL ACQUISITION CORP., DEFENDANT/INTERVENOR-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-0775-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2009

Before Judges Payne and Waugh.

Plaintiff John C. Pretto appeals that aspect of the dismissal of his action in lieu of prerogative writs that challenged the validity of two ordinances amending the Municipal Land Use Ordinance (MLUO) of defendant Township of Berkley Heights (Township).

Ordinance 1-08 amended subpart j of § 7.1.5.C.4 of the MLUO, which allows a "suite hotel" as a conditional use in the Township's Downtown Development (DD) zone. The amendment makes it a condition of the use that there be at least 1.1 parking spaces for each guest room. The amended provision also specifies that all other parking requirements shall be governed by other, more general provisions of the MLUO and shall not be considered terms of the conditional use. Ordinance 2-08 amended § 11.1.1 of the MLUO to set forth location and proximity requirements for parking spaces related to uses in the DD zone in general. Consequently, the number of parking spaces required for a "suite hotel" are conditions of the use, whereas the location and proximity of those parking spaces to the "suite hotel" are not.

The practical effect of the placement of those requirements in different sections of the MLUO is that a developer seeking to depart from the 1.1 parking-space requirement for a "suite hotel" would require a conditional use variance from the Township's zoning board of adjustment. See N.J.S.A. 40:55D-70(d); Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 296 (1994). "A variance for a deviation from a condition allows the applicant to engage in a conditional use despite the applicant's failure to meet one or more of the conditions: It is not the use but the non-compliance with the conditions that violates the ordinance." Coventry Square, supra, 138 N.J. at 287.

However, if the numerical parking-space requirement is met for a proposed "suite hotel," the Township's planning board would have authority to grant variances with respect to the requirements generally applicable in the DD zone, including those related to the location and proximity of the required parking spaces. See N.J.S.A. 40:55D-60(a) (conferring on planning boards the authority to grant variances pursuant to N.J.S.A. 40:55D-70(c) under certain circumstances). See also William M. Cox, New Jersey Zoning and Land Use Administration § 17-3 at 444-45 (2008).

The focus of the appeal is whether the splitting of the parking requirements applicable to the "suite hotel" conditional use between two provisions of the MLUO, one specific to the use and the others more generally applicable, caused them to be so unspecific and indefinite as to render them invalid pursuant to N.J.S.A. 40:55D-67(a), which requires that "definite specifications and standards [for conditional uses] be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent." Judge Walter R. Barisonek held that the ordinances at issue are not so unspecific and indefinite as to render them invalid. We agree and affirm on the basis of Judge Barisonek's comprehensive oral opinion. Pretto's arguments do not warrant further discussion by us in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20090731

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