Timothy E. Corriston and Allyson M. Kasetta of Connell Foley LLP recently succeeded in defending a development approval granted by the Wood-Ridge Planning Board for the expansion of a nonconforming use against a challenge by neighboring property owners. A copy of the decision is available here.
In 2014, Irma Conforti and Nicholas Conforti received approval from the Board to take over the operation of an existing restaurant use and to add a pizza preparation area. The approval included a variance for the expansion of a nonconforming use, since restaurants are not permitted in the subject zone.
The Plaintiffs, Aurigemma Family Trust, Margaret Zampardi and Michael Zampardi, filed a complaint in the Superior Court, Law Division seeking the reversal of the Board’s decision. The complaint claimed in part that the Confortis needed a variance for a new non-permitted use in light of the pizza preparation component, that the Confortis failed to meet their burden of proof before the Board, that their notice of the public hearings was deficient, and that the Board abused its discretion in bifurcating the hearings on the change in tenancy and the variance.
The trial court upheld the Board’s decision to grant the approval, declining to find that the Board’s actions were arbitrary, capricious or unreasonable as is required under State law for a reversal. The Appellate Division affirmed, citing the thoughtful reasons outlined by the trial judge in his 2015 opinion. The court added that because the Confortis only needed a variance for the expansion of an existing nonconforming use, and not a variance for a new prohibited use, they were not required to meet an enhanced standard of proof.
The appellate court agreed that the Confortis provided adequate notice of the hearings before the Board since (1) the change in tenancy did not require notice at all; and (2) the Confortis served and published a second notice before the hearing on the variance, which properly described the relief they were seeking and was sufficient to allow an ordinary person to understand that they intended to expand the restaurant.
Finally, the court rejected the Plaintiffs’ argument that the Board abused its discretion in bifurcating the hearings, agreeing with the trial court’s finding that bifurcation was appropriate since the change in tenancy was separate from the building expansion.
Corriston is a partner in Connell Foley’s Commercial Litigation, Environmental Law, Mass and Toxic Tort Litigation, and Product Liability and Tort Law practice groups. Kasetta is an associate in the firm’s Real Estate and Land Use practice group.
For more information, contact Timothy Corriston at 973-535-0500 or tcorriston@connellfoley.com.
