(908)402-4770The planning board or board of adjustment’s roll call vote to approve or deny a land use application at the conclusion of a hearing is not the end of the board’s decision making responsibility. The Municipal Land Use Law requires the board to set forth its findings of fact and conclusions in the form of a resolution. The resolution is typically drafted by the board’s attorney and adopted at a subsequent meeting. In the event of an appeal the resolution is the reasoning that will be reviewed by the court.
The resolution may not merely summarize testimony on a witness by witness basis or report its conclusions in a manner that merely parrots the statutory standards to be applied. A court faced with an inadequate resolution will remand to the board for the adoption of a supplemental resolution containing required facts and conclusions. But what if the second resolution is also inadequate?
That question was faced by the court in Klein Outdoor Advertising, Inc., v. the City of Jersey City Board of Adjustment, decided October 2, 2018. The applicant was seeking permission to erect a 98-foot high, 20 by 50 feet, double-sided digital billboard visible from a major highway. The board of adjustment held two hearing sessions at which the applicant presented six witnesses. The board denied the application and adopted an initial resolution that contained no factual findings and did not address any of the evidence presented at the hearing. It recited unsupported conclusions and referenced general concepts of zoning law.
On appeal the trial court found that the resolution was insufficient for purposes of allowing a proper review and remanded the matter to the board for reconsideration and the making of specific findings related to the statutory criteria for its decision. The board thereafter adopted a supplemental resolution also lacking in specificity.
The matter returned to the trial court and the judge hearing the case made his own extensive factual findings and legal conclusions and sustained the denial of the application.
On further appeal, the Superior Court, Appellate Division, ruled that the trial judge should not have made a decision on the merits of the application, but should have remanded the case a second time, a remedy which it ordered. Prophesying an inevitable return to the trial court when a third resolution was adopted, the Appellate Division ordered that the case be assigned to a different judge.
More than three years after the board voted to deny the application and after two trials and an appeal, there is still not an adequate explanation for this action.
Attorneys at Schiller, Pittenger & Galvin, P.C., have significant experience representing clients before planning boards and boards of adjustment.