On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2376-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically April 29, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
Defendant, the Zoning Board of Adjustment of the Township of Monroe, appeals from a Law Division judgment reversing its denial of an application to excise a 1978 unrecorded restrictive provision in a use variance affecting property owned by plaintiff, 365 Spotswood/Englishtown Road, LLC. Plaintiff's predecessor in title built a shopping center on the property after securing a use variance to allow retail parking on that portion of the parcel located in a residential zone. The variance was conditioned on the maintenance of a tree buffer separating the property from the adjoining residential lots.
In 1998, the municipal master plan was modified and the zoning applicable to the property was changed from a split business/residential zone to a neighborhood commercial (NC) zone. Following revision of the master plan, the property was rezoned to NC, which allowed retail use. At the direction of the municipal planning board, which was reviewing its application to expand the shopping center, plaintiff applied to defendant to eliminate the tree buffer imposed by the 1978 restriction suggesting it no longer applied in the NC zone or, in the alternative, to seek a variance. Defendant denied plaintiff's request. In its review, the Law Division found the prior 1978 restriction, mandating that the wooded area remain undeveloped, was no longer applicable. It reversed defendant's denial of plaintiff's application and rescinded the 1978 restriction.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED BY REVERSING THE ZONING BOARD'S DECISION WHEN IT WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE.
A. THE ZONING BOARD WAS FORCED TO DENY PLAINTIFF'S APPLICATION DUE TO PLAINTIFF'S UNREASONABLE REFUSAL TO CONSENT TO A THIRTY-DAY EXTENSION OF TIME AND ALLOW THE PUBLIC TO BE ADEQUATELY HEARD.
B. THE CONDITION OF APPROVAL GRANTED BY THE ZONING BOARD TO PLAINTIFF'S PREDECESSOR, WITH THE EXPRESS PURPOSE OF PROTECTING ADJOINING PROPERTY OWNERS, RUNS WITH THE LAND AND IS BINDING ON PLAINTIFF.
AT A MINIMUM, THIS CASE SHOULD BE REMANDED TO THE ZONING BOARD TO MAKE FINDINGS OF FACT AND LEGAL CONCLUSIONS ON THE MERITS OF PLAINTIFF'S APPLICATION.
Following our review of the arguments presented, in light of the record and applicable legal principles, we affirm.
The property which is the object of this appeal is located at Block 160.06, Lot 35 on the Tax Map of Township of Monroe (property), commonly known as 365 Spotswood Englishtown Road. The site is used as a shopping center and located in the NC zone, which allows retail shops.
Plaintiff purchased the property in 1984 from Daniel P. DiStefano, who initially sought approval for its development and built the shopping center. At the time DiStefano filed his application for development, the property was located partially in a business zone and partially in a residential zone. The retail building was to be constructed in the business zone, and DiStefano sought a variance to ...