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Appeals Court upholds decision to deny variance request for easement under Green Acres

A recent decision by the Superior Court of New Jersey’s Appellate Division had affirmed the decision of a New Jersey trial court grant of the Defendants’ dismissal of the complaint and motion for summary judgment. Plaintiff’s complaint cited various statutes concerning disability accommodations which were inapplicable given the circumstances.

In Julian Leone v. Howell Township, Howell Zoning Board of Adjustment, State of New Jersey, New Jersey Department of Environmental Protection, and Catherine R. McCabe, in her official capacity as Commissioner of the NJDEP, Plaintiff purchased a single-family home in Freehold, New Jersey in December 2015. The development is adjacent to a farm and is subject to a farmland and perimeter buffer and conservation easement that was granted by the developer to the Town in December 2012. After his purchase, Plaintiff installed an underground irrigation system and swing set structure on the easement. In 2017, the New Jersey Department of Environmental Conservation (“NJDEP”) approved the Town’s application to participate in the Green Acres Project. Any lands held by the Town, including the easement on Plaintiff’s property, were thereafter encumbered by the Green Acres laws. In 2018, Plaintiff received a notice of violation of the Town’s municipal code citing structure on/disturbing an easement.

Plaintiff met with the Town and informed them of his medical condition, asthma, and requested accommodation for his disability. In January 2019, Plaintiff filed an application with the Town Board for a bulk variance to permit mowing the easement area and maintaining the swing set and irrigation system.  Following the hearings, the Board granted Plaintiff’s application to water and mow the easement but denied the application to permit the swing set and underground irrigation system to remain on the easement. Plaintiff filed a complaint against the Defendants alleging violations of the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), the Rehabilitation Act of 1973 (“RHA”), and the New Jersey Law Against Discrimination (“LAD”). The State moved to dismiss Plaintiff’s claims for failure to state a cause of action. The Town moved for summary judgement. In June 2021, the Trial Court issued an oral decision granting the motions.

On appeal, Plaintiff raised several legal issues which the Court addressed. LAD ensures that all persons have the opportunity to obtain all accommodations, advantages and privileges of any place of public accommodation without discrimination. The Court found that the easement was included in Plaintiff’s deed and is not subject to LAD as there is not a public accommodation. Under the FHA, to pursue a reasonable accommodation claim, a plaintiff must show that the requested accommodation is reasonable and necessary to afford the handicapped person an equal opportunity to the use and enjoyment of housing. The Court found these regulations inapplicable to the circumstances as the easement does not deny Plaintiff access to or use and enjoyment of his dwelling. The Appellate Division also noted that if the Town were to grant Plaintiff’s variance application, there would be an unreasonable financial burden placed on the Town. The ADA and RHA prohibit all exclusion based on discrimination from a service, program, or activity by a public entity. Plaintiff failed to state if and how he was excluded. Instead, Plaintiff was accorded his full extent of due process regarding his variance application. Because Plaintiff cannot sustain any claims alleged in his complaint, the Trial Court properly dismissed the claims and granted summary judgment, which the Appellate Division affirmed.

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