This post was authored by Georgia Reid of Touro Law Center
An amendment to a land-use master plan in Chatham, New Jersey, left many cars with nowhere to go. The history of this contested lot dates back to the 1960s. Plaintiff, 4 Watchung Ave. (“Plaintiff”), was a car dealer who had an accessory parking lot to store vehicles in Chatham, New Jersey. Plaintiff started leasing the lot in 1992 and then purchased it in 2002 from Otto Schmidt, Jr. (“Schmidt”). Schmidt himself had been using the lot to store vehicles since 1998.
All was status-quo for Plaintiff’s lot until 2013 when Chatham amended its land-use master plan pursuant to a report by professional planner Dr. Susan G. Blickstein (“Blickstein”). Blickstein’s plan envisioned an overlay zoning plan called “Gateway to Chatham,” which would amend the borough’s M-1 and M-3 zones, prohibiting all uses not permitted as a principal, accessory, or conditional use. Plaintiff’s lot was located in M-1, where outdoor vehicle storage was not a permitted use. In 2014, Plaintiff was served a notice of violation and an order to abate the parking and storing of cars on the lot. Plaintiff went to the Zoning Board of Adjustment (the “Board”) appealing the violation, or, alternatively, seeking a use variance and site plan approval to permit its continued parking of cars in the lot.
The first hearing with the Board took place in 2016. Interestingly, there was an unsigned 1971 resolution from the Board involving the previous owner of the lot, Schmidt, who had applied for a variance application. The approval of the variance was conditioned on the erection of a fence around the property and limited the number of vehicles to 125. Plaintiff considered its options, including amending the application to request a certificate of nonconformity. In a follow-up meeting, Plaintiff told the Board that Plaintiff intended to challenge the violation and decided against seeking the variance. Blickstein, who also served as the Board’s staff planner, was present and significantly participated in the proceedings.
After two more meetings, the Board in 2017 unanimously denied Plaintiff’s appeal from the zoning violation. The Board concluded that Schmidt was required to obtain a use variance in 1971 because the storage of automobiles was not a conditional use permitted in the zone under the prior ordinance and that the property had not been granted a use variance in 1971. The Board then voted to deny Plaintiff a use variance. Plaintiff appealed. Following two sessions, the Board again voted to deny Plaintiff’s appeal from the violation and application for a variance.
The parties next appeared before the Law Division judge (the “judge”) in 2018. The question for the judge was whether Chatham’s failure to enforce the zoning regulations on the lot estopped further prosecution of the violation and was implicit proof that Schmidt obtained the variance in 1971. Plaintiff also asserted that “Blickstein’s involvement as both the author of Chatham’s master plan revision report and as the Board’s staff planner presented a conflict of interest that tainted the proceedings.” The judge found that substantial evidence in the record supported a finding that the 1971 Schmidt application was approved and that Schmidt was indeed granted a use variance.” He granted partial judgment to Plaintiff and declined to reach the estoppel issue. As far as Blickstein’s potential conflict of interest, the judge found none.
All of these hearings lead to the 2010 case of 4 Watchung Ave. v. Zoning Bd. of Adjustment of Chatham, and the 2020 decision of the Court.
The Board and Chatham argued the judge erred by substituting his assessment of the evidence for the Board’s judgment of that evidence. Plaintiff countered and also filed a cross-appeal. Plaintiff again asserted that Blickstein “was a conflicted party” and that her participation and advice during the initial hearings were prejudicial. Plaintiff also claimed that Chatham’s “inaction and actions” subject its prosecution of any zoning violation to the doctrine of “municipal estoppel.”
The Court reversed in part, affirmed in part, and remanded in part for further proceedings.
The Court agreed with the judge regarding Blickstein’s lack of a conflict of interest. Plaintiff argued that Blickstein’s dual roles as the author of the borough’s Master Plan Revision report and Board planner violated the Local Government Ethics Law (LGEL), which provides that “no local government officer or employee shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties.” Plaintiff claimed Blickstein’s ability to render objective advice to the Board as its planner was “compromised by her commitment to the objectives of the revision report.” Defendant argued that Blickstein’s role as Board planning consultant aligned with Chatham’s interests in adopting the revision report, and there was no hint that Blickstein had any direct or indirect, personal or pecuniary interest in Plaintiff’s application. The Court agreed that Blickstein’s dual role could not leave the public with a perception of conflicted loyalties.
The Court disagreed with the judge about the use variance granted to Schmidt in 1971. The Court held that the Board’s decision that Plaintiff’s property was not granted a use variance in 1971 was not arbitrary, capricious, nor unreasonable.
The Court declined to decide the estoppel issue. It remanded the matter to the trial court: “review of the above cases makes clear that critical factual determinations must be made on a case -by-case basis, and that further discovery might necessarily be needed.”
4 Watchung Ave. v. Zoning Bd. of Adjustment of Chatham, (Super. Ct. App. Div. Jan. 31, 2020).