by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

Recent postings notwithstanding, the editor usually avoids discussion of many land use cases because such cases involve so much local detail and procedure that they are not valuable to a national audience. The following group of cases, submitted by Ira Meislick of the New Jersey Bar, are of primary interest to land use mavens, but they do involve issues that the editor believes may be common to many land use jurisdictions. This being Thanksgiving, when we all try to stuff down more than seems digestable, I have included four cases here.

ZONING AND LAND USE; PROCEDURE; STANDING: Where tenant has applied for a variance, and procedure is pending, the tenant may lose its standing if it agrees with the landlord to replace the existing lease with a new lease.

Mitchell v. Bd. of Adjustment of Sussex Cty., 706 A.2D 1027 (Del. Supr. 1998).

An asphalt mixing company entered into a ground lease with the County for a plant to be located in the County's industrial park. The zoning did not permit construction of an asphalt plant so the tenant applied for a special use exception with the County Board of Adjustment. At the hearing that took place, a neighbor raised several objections including an objection to a last minute submission of a revised site plan by the tenant. Nonetheless, the Board of Adjustment granted a five year special use exception. The neighbor appealed to the Courts.

While the appeal was pending, the asphalt plant operator and the County council agreed to terminate the original lease agreement and to enter into a new lease which more closely followed the conditions imposed by the Board of Adjustment. The revised lease agreement declared the original lease terminated and of “no legal effect whatsoever." The trial court confirmed the decision of the Board of Adjustment upholding the grant of a special use exception.

The determinative issue in the appeal was whether the termination of the original lease, the one that had been presented to the Board as a basis for the tenant's right to seek a special use exemption, rendered the litigation moot.

Delaware courts must decide actual controversies. Therefore, under the doctrine of mootness, an action must be dismissed when it fails to present the controversery which is capable of judicial resolution, or if a party has been divested of standing.

The County code limits parties who can petition to obtain the special use exception. One of the proper parties is a tenant. There was no disagreement at the ti me the application was filed, the asphalt company was a tenant. The neighbor argued, however, that, upon termination of the original lease agreement, the asphalt company ceased to be a tenant, thereby losing its standing to receive the special use exception that it was seeking and rendering the suit moot.

The appeals court here agreed with the neighbor. Once the termination agreement was executed, the asphalt company lost its standing to receive its special use exemption. This was true notwithstanding the asphalt company's argument that the parties intended preserve its status as tenant and its standing by entering into a new lease on the same day that the termination agreement was executed. The new lease, however, was never presented to, or considered by, the Board of Adjustment. Moreover, neither the original lease, the termination agreement, nor the new lease contained any provision to the preservation of the asphalt company's status as a tenant upon termination of the original lease. Furthermore, the tenant was not in a position to argue at the County as the owner/applicant for the permit because the only signature on the application was that of the tenant's president.

Comment: The lesson here is quite clear. The applicant’s position would have been improved dramatically if the parties had taken into account the possibility of mootness and drafted around it in their leasing arrangements. It’s a good example of how thoughtful lawyers can steer their clients around shoals that will ground others.

ZONING AND PLANNING; PROCEDURE; REVIEW; PRESUMPTION OF VALIDITY: A material recoveries facility may be within the definition for a limited manufacturing zone because if it is an industrial use similar to, and not inconsistent with, specific uses that the relevant ordinance list as being permissible uses within the zone, even where no manufacturing takes place.

Atlantic Container, Inc. v. Township of Eagleswood Plannin g Board, 312 N.J. Super. 213, 711 A.2d 419 (Law Div. 1997).

A company applied for a use variance to build a materials recovery facility which would receive construction debris containers storing wood, concrete, roofing shingles, and metal. The debris would be sorted manually, with recyclable materials being sold to third parties and the remainder taken to a dump. The proposed facility was located in a limited manufacturing zone, and a section of the municipality's zoning ordinance l isted permitted uses in the zone, including the manufacturing of machinery and the fabrication of metal and wood. A "catchall" subpart of that section of the ordinance permitted any industrial use similar to, and not inconsistent with, the listed uses. The planning board concluded that the proposed use was not permitted under the ordinance because the facility would simply be a transfer station for disposal of solid waste, and there would be no manufacturing taking place.

First, the lower court noted that this case involved interpretation of a zoning ordinance, which is purely a legal determination. Accordingly, the planning board was not entitled to a presumption of validity as it is when a court determines only whether a planning board was arbitrary, capricious, or unreasonable. Factors considered by the lower court included interpretation of the legislation and the fundamental purpose for which it was enacted, the nature of the subject matter, the history of the legislat ion, and the reading of other statutes in conjunction with the ordinance. After review, it found that none of the permitted uses precisely fit into the “manufacturing” category, and that other language in the ordinance indicated that industrial uses were also permitted. It then reversed the planning board's finding, concluding that the proposed use was permitted under the catchall subpart of the ordinance because it was an industrial use similar to, and not inconsistent with, other expres sly permitted uses. Thus, it held that the company did not need a variance after finding that other expressly permitted uses were more objectionable than the proposed use.

Comment: The editor does not discuss a lot of zoning cases because, like this one, they involve very specific language of particular zoning code provisions, and are of little interest to a national audience. This case seemed useful, however, because these “materials sorting facilities” are becoming a popular new activity and are meeting with resistance in many communties. Further, the principle that local zoning boards do not enjoy a presumption of validity in the interpretation of their own zoning ordinance is an interesting notion that might be news in a few jurisdictions.

ZONING AND PLANNING; PROCEDURE; NOTICE: Zoning board applicants seeking a certification of prior non-conforming use must give notice to adjacent landowners.

Township of Stafford v. Stafford Township Zoning Board of Adjustment, 154 N.J. 562, 711 A.2d 282 (N.J. 1998).

An applicant sought a hearing before the zoning board of adjustmentto determine whether or not applicant’s sale, purchase, and repair of automobiles on its land was a pre-existing, nonconforming use. The applicant did not provide notice of the hearing to owners of property within 200 feet of the lot in question and did not publish a notice in an appropriate newspaper.

The municipality's deputy code enforcement officer opposed the property owner’s application. The zoning board approved the property owner’s application. The municipality then filed a complaint alleging that the property owner should have sent notice to its neighbors, but the trial court found that the municipality had no standing because the matter before the zoning board was so narrow in scope that there was not an actionable risk to the character of the district.

The Appellate Division, however, ruled that notice to neighbors should have been given, and reversed and vacated the zoning board’s certification. It further found that the municipality had standing to challenge the board’s certification based on "arrogation of authority," equating injury to the municipality’s citizens with interference with the municipality’s statutory authority.

The question as to whether an applicant for a nonconforming use certification must provide notice pursuant to the Mu nicipal Land Use Law was an issue of first impression. Under that law, notice is required in connection with an "application for development." In the statute, that phrase is defined as "the application form and all accompanying documents required by ordinance for approval for a subdivision plat, site plan, plan development, conditional use, zoning variance, or direction for the issuance of a permit... ." "Variance" is defined as "permission to depart from the literal requirements of the zoning ordinance... ." Based on the plain language of the notice statute, it would appear that the law does not require applicants seeking certification of a prior nonconforming use to give notice to adjoining landowners.

A different section of the Municipal Land Use Law requires that applicants for expansion of a nonconforming use must notify adjoining landowners. The Court projected the possibility that what may initially appear to be an application for certification of a prior nonconforming use could actually turn out to be an application for expansion of a nonconforming use. Consequently, the Court, following its own established rule of statutory construction requiring that it interpret a statute "consonant" with the probable intent of the draftsman "had he anticipated the situation at hand," ruled that in view of the imperfect drafting, the legislature intended that notice be given under the circumstances presented. Furthermore, applying a long standing precedent, the Court determined that its holding should apply retroactively to the property owner.

ZONING AND PLANNING; PROCEDURE; STANDING: A municipality has standing to challenge the board’s determination in those rare circumstances where a zoning board exceeds the scope of its authority.

Township of Stafford v. Stafford Township Zoning Board of Adjustment, 154 N.J. 562, 711 A.2d 282 (N.J. 1998), discussed under the heading: Zoning and Planning; Procedure; Notice. With respect to the standing issue, the Court recognized that a municipal agency’s parens patriae interest in protecting the general public is insufficient to support standing to challenge an exercise of power by another municipal agency. To allow such contests among agencies "solely to vindicate the right of the public" is "to invite confusion in government and a diversion of public funds from the purposes for which they were entrusted."  Nonetheless, the Court views the matter quite differently when it encounters an arrogation of authority. The Supreme Court determined that the zoning board exceeded its authority in hearing the petitioner’s application and in doing so threatened the public’s interest in enforcement of the Municipal Land Use Law.

Sensitive to the legislature’s intent that the governing body generally should not interfere with or influence a zoning board’s decision with respect to nonc onforming use certifications, the Court limited its decision to give standing in a municipality to those rare circumstances where a zoning board exceeds the scope of its authority (thereby arrogating the governing body’s authority) if such an action threatens either the public interest or enforcement of the law itself.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

It ems reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.