Agenda - Planning Commission - 09/16/2010 - Special Meeting

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July 25, 2010 [ Volume 4 1 No. 14 Zoning Bulletin The Background/Facts: Campus Associates L L C ("CAL") owned nearly 14 acres in the township. In August 2006, it entered into a contract with The Richman Group of New Jersey, L.L.C. ("Richman"). Under that contract, Richman agreed to purchase CAI:s property if it could secure necessary development approvals to construct affordable housing units on the property. Thereafter, Richman applied to the township's Zoning Board of Ad- justment (the "ZBA") for a use variance and related bulk variances needed to construct 84 moderate income housing units on the property. The ZBA denied Richman's application. Richman chose not to pursue an appeal. Richman then terminated its contract with CAL. CAL, however, filed in court a timely appeal of the ZBA's denial of Richman's use variance application. The ZBA asked the court to dismiss CAL's appeal. It contended that CAL's appeal must be dismissed because CAL did not have standing (i.e., the legal right) to make the appeal. The trial court granted the ZBA's motion to dismiss. It agreed that CAL lacked standing, finding that CAL did not have "a sufficient stake and real adverseness [with] respect to the subject matter of the litigation." CAL appealed. The Court's Decision: Judgment of Superior Court reversed, and matter remanded. The Superior Court of New Jersey, Appellate Division, held that CAL had standing to challenge the denial of Richman's use variance application. In so holding, the court explained that in order to have standing, the plaintiff (i.e., the party bringing the action —in this case CAL) must have: "a sufficient stake and real adverseness with respect to the subject mat- ter of the litigation [and a] substantial likelihood of some harm ... in the event of an unfavorable decision." "A financial interest in the outcome ordinarily is sufficient to confer standing," said the court. The court noted that CAL, as owner of the land, was directly affect- ed by Richman's variance application because "[v]ariances run with the land." Variances do not provide a personal right to the applicant, but rather attach a right to the land, allowing successive owners the ben- efits of the variance. Thus, if the ZBA had granted the variance sought by Richman, that variance would have benefited CAL's property. If Rich- man backed out of its contract with CAL, the variance still would have allowed CAL or other owners or developers to construct affordable hous- ing on the property consistent with the variance. Conversely, the denial of Richman's variance application denies that benefit to CAL's property. Accordingly, found the court, CAL was "a real party in interest with a sufficient stake in the outcome to confer standing." There was "real adverseness here," said the court, since CAL still sought to develop its 8 ©2010 Thomson Reuters 10.6