Posted by: Patricia Salkin | May 8, 2014

NJ Appellate Court Upholds Site Plan Approvals and Finds No Conflict of Interest on the Part of the Board Chair for Having Made a Donation to the Subject School Where He Graduated From

Yehuda and Bernice Shain (“Shains”), who resided across from a proposed development appealed a Law Division order that dismissed their complaint, which challenged Resolution SP # 1957, adopted by the Lakewood Township, New Jersey Planning Board (“Board”). The resolution was related to an application for preliminary and final major site plan approval, without variances, to modify a graduate level educational institution filed by defendant Beth Medrash Govoha of America (“BMG”),

On appeal, the Shains alleged the development exacerbated the residential area’s “parking crisis.” Further, they stated that there was insufficient stormwater drainage and excessive noise. They also maintained that the Law Division erred as a matter of law in upholding the resolution because N.J.S.A. 40:55D–70b granted the Board of Adjustment sole jurisdiction to interpret the municipal zoning map. The Shains claimed the Board and the trial judge overstepped this jurisdiction by relying on their own interpretation of Ordinance 209–53, which the Shains asserted restricted development of a Planned Educational Campus to multifamily residential zones (“RM”). The Shains reasoned because BMG’s development was not within an RM zone it was therefore inconsistent with the municipal Master Plan, estopping the proposed development.

The Shains next maintained that the Board’s Chairman should not have participated in the voting on BMG’s development because his recent donation to BMG created a disqualifying conflict of interest and because he and another Board member graduated from BMG. Further, the Shains asserted that the notice to affected neighboring owners was defective because the published notice included lot and block numbers of the affected realty, rather than street addresses. Additionally, specifics of the proposed use of buildings on the campus were omitted. Also, the Shains asserted the Board impinged on the public’s due process rights by denying them the ability to pose questions during Shains’ initial presentation, which inhibited the Board from considering the completeness of its application. The court stated that this contention was without consideration of the Board’s public hearing conducted prior to issuing final approval.

On the matter of the parking issue, the Shains’ identified what they believed were flaws in the Board’s review and conclusions. They asserted the approval was arbitrary, capricious and unreasonable. After reviewing the record and applicable law the court found no factual or legal insufficiency and concluded that the Board’s approval was not ultra vires, nor was it arbitrary, capricious or unreasonable. Therefore, they affirmed.

Shain v Lakewood Tp. Planning Bd., 2014 WL 1613668 (NJ Sup. 4/23/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664143.html


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