On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-739-08.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Yannotti*fn1 and Chambers.
In this appeal, we consider whether a landowner has standing to appeal the denial of a use variance for its property when the variance application was made by a contract purchaser for the property.
In this case, the contract purchaser for the property sought a use variance in order to construct affordable housing on the property. When the application was denied, the contract purchaser declined to appeal and ended the contract. As a result, the landowner of the property, who intended to pursue the project, filed a complaint in lieu of prerogative writs in the Law Division challenging the denial. The Law Division judge dismissed the complaint on the basis that the landowner did not have standing to prosecute the appeal because it was not the applicant for the variance.
We disagree and reverse. We conclude that the denial of the variance sought by the contract purchaser may be appealed by the landowner provided the application depended on property specific proofs and not factors unique to the applicant.
Plaintiff Campus Associates, L.L.C. is the owner of 13.79 acres of property located in an I-3 Light Industrial Zone District in the Township of Hillsborough. In August 2006, it entered into a contract with The Richman Group of New Jersey, L.L.C. (Richman) whereby Richman would apply for the necessary development approvals to construct affordable housing units on the property pursuant to a public subsidy program known as the low income housing tax credit program. 26 U.S.C.A. § 42; see also In re Tax Credit Application of Pennrose Props., Inc., 346 N.J. Super. 479, 485 (App. Div. 2002) (explaining the program). In the contract, Richman agreed to purchase the property provided the approvals were secured during a specified period of time.
Richman thereafter applied to the Zoning Board of Adjustment of the Township of Hillsborough (the Board) for a use variance and related bulk variances in order to construct eighty-four federal tax credit affordable residential units on the property.*fn2 By Resolution dated March 26, 2008, the Board denied the application. Among the reasons for denying the application, the Board stated that it was not satisfied that the project was an inherently beneficial use because the proposed development was for moderate income housing only and did not include any low income housing. Richman decided not to pursue an appeal and terminated its contract with plaintiff.
Plaintiff, as owner of the property, filed a timely complaint in lieu of prerogative writs in the Law Division, challenging the Board's denial of the use variance application. Prior to filing an answer, the Board moved under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which relief can be granted due to lack of standing. See In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180 (App. Div.) (treating a motion to dismiss for lack of standing as failure to state a claim), certif. denied, 113 N.J. 660 (1988).
In opposition, plaintiff submitted the certification of its managing member, an experienced commercial and residential real estate developer, who stated that plaintiff was ready to develop the project either by itself, by reinstating the contract with Richman, or by contracting with another company specializing in this kind of development. Attached to the certification was a letter to plaintiff from Richman in which Richman stated that if plaintiff were successful on the appeal, Richman "would be very interested in pursuing the reinstatement of the prior Purchase Agreement." Plaintiff requested leave to amend the complaint to assert these additional facts, if necessary to achieve standing.
The trial court granted the Board's motion to dismiss on the basis that plaintiff lacked standing, stating that plaintiff did not have "a sufficient stake and real adverseness [with] respect to the subject ...