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Costa v. Lahue

September 15, 2010

ANTHONY PIO COSTA, III, AND PIO COSTA ENTERPRISES, PLAINTIFFS-APPELLANTS,
v.
ROBIN LAHUE, MICHAEL LAHUE AND ANTON COMPANY, DEFENDANTS-RESPONDENTS, AND TOWNSHIP OF FAIRFIELD PLANNING BOARD, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4137-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 5, 2010

Before Judges Cuff and Waugh.

Plaintiffs, Anthony Pio Costa, III, and Pio Costa Enterprises (collectively Pio Costa), and defendants, Robin Lahue, Michael Lahue and the Anton Company (collectively Anton), each own certain properties in a forty-two acre commercial/light industrial park known as the Junction in the Township of Fairfield. Anthony Pio Costa and Robin Lahue are brother and sister, who are not on amicable terms. Pio Costa filed a three-count complaint in which it challenged preliminary and final site plan approval granted by defendant Township of Fairfield Planning Board (Planning Board) for outdoor storage on a lot owned by Anton in the Junction (Count One). Pio Costa also claimed that Anton breached the terms of a 1991 settlement agreement entered between Pio Costa and Anton (Counts Two and Three). Pio Costa appeals from the dismissal of Count One as untimely.*fn1 We affirm.

The Junction is located near the intersection of Route 46 and Bloomfield Avenue in the Township of Fairfield. Pio Costa and Anton own contiguous parcels of land in the Junction.

Fourteen buildings are located on forty-two acres in which various industrial, commercial and retail uses are conducted. Pio Costa owns Lot 1.01 and 17.01; Anton owns Lots 1.02, 1.03 and 1.04. All are located on Block 401 of the Fairfield tax map.

On January 12, 2005, an amendment to the zoning ordinance became effective. Lots 1.01, 1.02, 1.03, 1.04, and 17.01 were rezoned from Light Industrial (L-1) to Commercial (C-3). Anthony Pio Costa attended the hearings on the rezoning. In addition to rezoning the Junction parcels, section 45-32.5(c) of Township Ordinance 2004-16 addresses access to the site; it provides:

There shall be one primary site access drive located on Bloomfield Avenue to serve the district. This access point shall separate ingress movements from egress movements by use of a landscaped median. The design of such drive is to follow generally recognized traffic engineering standards and utilize appropriate signage. A second ingress-only drive may also be permitted onto Bloomfield Avenue. No other vehicular access ways linking this site with the local or county road network are permitted.

On or about August 10, 2005, Anton filed an application with the Planning Board for conditional use and preliminary and final site plan approval for outdoor storage on Lot 1.03. In a letter dated November 18, 2005, the Township Engineer advised the chair and members of the Planning Board that "Section 45- 32.5, C-3 'Other Requirements' requires modifications to the Bloomfield Avenue access. The applicant must address this with the Board."

Anton received a copy of this letter and retained an expert to prepare plans to address the Bloomfield Avenue access. The record also demonstrates that defendant Robin Lahue wrote Anthony Pio Costa on April 26, 2006. She informed him that the Planning Board requested they develop plans "for improved vehicular access from Bloomfield Avenue" and requested his cooperation. She also advised him that "any proper solution will require work to be done on both of our properties."

A Notice of Public Hearing for the application was published in The Star Ledger and sent to Pio Costa as required by the Municipal Land Use Law in October 2006. N.J.S.A. 40:55D-12. The notice stated that the matter would be presented to the Planning Board at its October 24, 2006 meeting. The scope of the application was described as follows: an application by the Anton Company . . . relating to an existing outdoor storage yard for conditional use and preliminary and final site plan approval and, if required, variance approval, as more particularly described below relating to property designated as Block 401, Lot 1.03. . . .

The notice described the current use of the site. It also related that Anton would seek a variance from the buffer requirement of section 45-32.5 of the zoning ordinance and also stated that the applicant believed outdoor storage use was a pre-existing non-conforming use. The notice contained no mention of the work to be performed on Lot 1.04 to modify access to the site.

The application was presented over two meeting dates. The November 28, 2006 hearing addressed access improvements from Bloomfield Avenue into and from the site. At that second hearing, the Planning Board also voted to approve the application. On January 9, 2007, the Planning Board adopted a resolution approving the application. This approval included a provision that the applicant must comply with the recommendations of the Township Engineer, and narrowing the current access to ...


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