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Court Upholds Township Board’s Development Application Approval Following a Challenge by an LLC from a Neighboring Borough

This week, in an unpublished decision, the Superior Court of New Jersey’s Appellate Division upheld the North Bergen Board of Adjustment (“Board”)’s approval of an application for development of property in North Bergen after it was challenged by an LLC from a neighboring town (“Plaintiff”).

In Riverside Dev. Studies Llc v. N. Bergen Bd. of Adjustment & 9001 River Rd. Llc, 2023 N.J. Super. Unpub. LEXIS 369, a developer sought variances to construct residential and commercial units on its property. After the Board expressed concerns regarding the size of the proposed building, the developer submitted revised plans. At the second hearing, Plaintiff’s counsel cross-examined the developer’s witnesses and presented a report. The Board also heard from members of the public. The Board then scheduled a third hearing to consider additional revisions and fire safety concerns. The Board sent notice of the meeting to newspapers, board members, applicants, and attorneys, and a copy of the agenda was posted in the township hall lobby for public inspection. At the meeting, following the chairman’s statement that fire officials were satisfied, the Board unanimously approved the application. Plaintiff’s counsel then complained that the Board had neglected to allow any members of the public to speak, to which the Board responded that the Board had already heard from the public at the prior meeting, and that the purpose of this hearing was solely to discuss the fire safety issues.

Plaintiff challenged the Board’s approval, arguing that it had standing to sue, that the Board’s approval was not supported by substantial credible evidence or consistent with applicable law, and that its claim under the Open Public Meetings Act (OPMA) should have been heard.

The trial court disagreed and dismissed the challenge, and the appellate division affirmed.

Citing N.J.S.A. 40:55D-4, the court first held that Plaintiff lacked standing because it did not establish that it had a property right that “is or may be affected” by the decision. The court noted that plaintiff’s principal office was in Paramus, not North Bergen, its members did not own property in North Bergen, and that none of Plaintiff’s members’ “rights to use, acquire, or enjoy property” would be impacted by the application.

The court then found that the decision was supported by sufficient credible evidence to avoid a finding of abuse of discretion. Finally, with respect to the OPMA claim, the court upheld the lower court’s fining, observing that the public was given notice that the final meeting was open to the public. The court also noted that because no witnesses testified during that hearing, no one was denied the right cross-examine any witness under N.J.S.A. 40:55D-10(d). Finally, the court was persuaded by the facts that the plaintiff had an opportunity to cross-examine the applicant’s witnesses during previous meetings and that Plaintiff’s counsel had the opportunity to make a closing argument.

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