Appellate Division Rules Distant Neighbor Can Challenge Zoning Approval

In DiMarco v. Zoning Board of Adjustment of the Borough of Edgewater and Three Y LLC, the Appellate Division of the New Jersey Superior Court ruled that a resident who lives approximately 2½ miles from a proposed development project can pursue a late lawsuit challenging a municipal zoning approval. In reaching its decision, the appeals court emphasized that standing under the Municipal Land Use Law (MLUL) should be broadly construed.

Facts of the Case

Defendant Three Y, LLC (defendant) applied for preliminary and final site plan approval as well as multiple variances to construct a development project consisting of a hotel, residential building, and garage. The Zoning Board of Adjustment of the Borough of Edgewater (Board) passed a resolution memorializing its approval after conducting various hearings.

Plaintiff Erik C. DiMarco (plaintiff), a resident of Edgewater who lives approximately two and one-half miles from the project, filed a complaint in lieu of prerogative writs challenging the Board’s decision. Among other claims, the plaintiff alleged that the Board failed to provide “sufficient zoning analysis,” rendered conclusory findings, ignored “height restrictions,” erroneously granted D4 and C variances, and failed to properly notify the “affected properties located within the required distance from [the property].” Plaintiff also maintained that the Board’s decision was arbitrary, capricious, and unreasonable; was otherwise unsupported by sufficient facts; violated the law; and “damag[ed] the rights of [p]laintiff.” Plaintiff requested the Board’s resolution be invalidated and that he be awarded counsel fees.

The trial court dismissed the complaint, without oral argument. First, relying on Rule 4:69-6(a) (setting forth a forty-five-day deadline for such actions), the court found that the plaintiff’s complaint was untimely by one month. Second, citing Rule 4:6-2(e), the court determined plaintiff lacked standing to “bring a claim of this nature” because plaintiff did not “operate a competing business whose interests would be affected.”

Appellate Division’s Decision

The Appellate Division reversed. It ruled that the plaintiff had standing to pursue his claims and should be able to proceed even though he admittedly filed his complaint one month beyond the deadline imposed by Rule 4:69-6(a).

 The Appellate Division first addressed whether the trial judge abused his discretion by not enlarging the deadline for filing the complaint. As the court explained, the interest-of-justice provision of Rule 4:69-6(c) for expanding the limitation period applies to cases involving (1) “important and novel constitutional questions”; (2) “informal or ex parte determinations of legal questions by administrative officials”; (3) “important public rather than private interests which require adjudication or clarification”; and (4) “a continuing violation of public rights.” 

According to the Appellate Division, the trial court erred in concluding that the facts present “personal issues that do not present widescale public interests that would preempt” the filing deadline. Instead, the panel cited DiMarco’s claims that “the project is large enough to impact the look and feel of Edgewater for many years to come and is, therefore, considered to be an important public concern.” The appeals court also emphasized that DiMarco maintained that the project “will severely impact the entire borough, its services, schools, and traffic.”

In further support of its decision, the Appellate Division emphasized that DiMarco provided a reason for not meeting the filing deadline, certifying that revised temporary changes to the Board’s procedures, which were implemented during the COVID-19 pandemic, affected his ability to follow the case. “His explanation implies no excusable neglect and precludes a finding that he ‘slumbered’ on his rights,” the court wrote. It also found that the short delay did not prejudice the defendant, especially it is a party in another pending and timely filed action in lieu of prerogative writs challenging the Board’s resolution.

The Appellate Division next turned to whether the judge erred as a matter of law on the issue of standing. As the panel explained, an “interested party” is defined under the Municipal Land Use Law as:

any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [this act], or whose rights to use, acquire, or enjoy property under [this act], or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under [this act].

Citing the statutory definition and New Jersey court’s broad interpretation thereof, the Appellate Division rejected the argument that DiMarco lacked standing. “We conclude, employing the court’s recent statement that we are to utilize a liberal approach to standing in zoning cases and broadly construe the [Municipal Land Use Law’s] definition of interested party that plaintiff has standing,” the court wrote.

In reaching its decision, the appeals court cited DiMarco’s argument that the D variances grant major deviations in use or intensity allowed in the zone, and otherwise affect school capacity, traffic, safety, budgetary considerations, aesthetics, and other considerations of the Borough. “Plaintiff asserts that this is not a situation where a homeowner two miles away is challenging a resident’s side yard variance,” the court wrote. “Rather, it is a challenge to variances that allow major construction of a large and prominent commercial development.”

For more information about the Supreme Court’s decision or how your municipality may be impacted by the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group

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