Scully-Bozarth Post 1817 of the Veterans of Foreign Wars of the United States v. Planning Board

827 A.2d 1129, 362 N.J. Super. 296, 2003 N.J. Super. LEXIS 266
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 21, 2003
StatusPublished
Cited by16 cases

This text of 827 A.2d 1129 (Scully-Bozarth Post 1817 of the Veterans of Foreign Wars of the United States v. Planning Board) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scully-Bozarth Post 1817 of the Veterans of Foreign Wars of the United States v. Planning Board, 827 A.2d 1129, 362 N.J. Super. 296, 2003 N.J. Super. LEXIS 266 (N.J. Ct. App. 2003).

Opinions

The opinion of the court was delivered by

LISA, J.A.D.

In this land use dispute, the Burlington City Planning Board (Board) denied the application of Scully-Bozarth Post # 1817 of the Veterans of Foreign Wars of the United States (VFW) to expand a pre-existing nonconforming use by placing a surplus army tank on the property containing its gathering hall. The property is located in an R-l zoning district, and in the City’s [300]*300Historic District. The tank would be permanently placed on the property as a memorial to veterans of the armed forces.

A number of neighboring residents (objectors) opposed the variance at the proceedings before the Board. Ten of those individuals, living in six homes near the VFW’s property, participated in the trial court proceedings by virtue of a separate action they filed against the Board and the VFW. Their action was consolidated with that filed by the VFW against the Board, seeking to overturn the denial of its variance application.

The trial judge granted summary judgment in favor of the VFW, reversing the Board’s action. The judge found the Board’s action improper because it was taken without prior discussion or deliberation and because it was unsupported by the record. The order directed the Board to grant the use variance application and conduct further hearings to consider site plan review, with or without conditions. The order also denied the objectors’ summary judgment motion, which sought to dismiss the VFW’s action, to order removal of the tank (which had been placed there as a result of prior proceedings, which we will discuss below), and to allow the objectors to dismiss their remaining claims. The Board did not file any pleadings or participate in the trial court proceedings. Before us, the Board has not participated, except to inform us it relies on the position of the objectors.

The objectors appeal, arguing (1) the Board’s denial of the VFW’s use variance application is supported by the record, (2) the Board’s resolution was properly adopted and memorialized and it represented- the Board’s collective decision, and (3) the Board properly denied the VFW’s request for reconsideration. The VFW cross-appeals, arguing (1) the trial court erred in allowing the objectors to participate because they did not file a proper intervention motion, and (2) in the event we reverse the summary judgment motion in favor of the VFW, we should remand the matter to the trial court or the Board for further proceedings. We agree with the objectors and reverse on the appeal. We affirm on the cross-appeal.

[301]*301I

The VFW property is located at 142 Riverbank.1 The lot contains a building owned and used by the VFW as a gathering hall since 1937.2 The building was originally built in the nineteenth century as a three-story mansion. In 1964, the upper stories were in a poor state of repair and were removed. The building is now a one-story masonry building, nineteen feet high. It is open daily for various activities, including bingo once a week. The lot is about 338 feet by 203 feet, consisting of about 1.6 acres. The property is in the R-l zoning district, Burlington City’s highest residential district. It is also within the city’s Historic District. Because the VFW’s use predated the city’s zoning ordinances, it enjoys the status of a pre-existing nonconforming use. Only single family detached dwellings are a permitted use in the R-l district. Conditional uses permitted are schools and places of worship.

The property is bordered by the Delaware River to the north. Between the property and the river is Delaware Street and a public promenade along the river. The building sits back 123.5 feet from the street. The VFW building, along with others in proximity to it, is somewhat elevated above the street and promenade, with a large expanse of lawn. A number of eighteenth and nineteenth century mansions are located in this immediate area. There are also other nonconforming uses, including the Catholic Welfare office building immediately to the east of the VFW building and a three-story building housing three or four apartments immediately to its west. Beyond the apartment building, there are four homes, and then Saint Mary’s School. Some [302]*302distance beyond the school is the Burlington-Bristol Bridge, crossing into Pennsylvania.

The proposed location of the tank is in front of the gathering hall, facing the river. The application sought approval for the placement of the tank on a concrete pad measuring sixteen feet by thirty feet. The memorial would include five flag poles, each commemorating one of the military branches. There would also be lighting, to illuminate the tank at night, and landscaping. The tank, would be “demilitarized,” by removing its machine guns, rendering the tracks immovable, removing the engine and welding shut the hatches. In its demilitarized state, it would measure ten feet high, thirty feet long and fifteen feet wide. It would weigh fifty-two tons.

II

At the time of the variance application, in the Fall of 2001, that is the subject of this appeal, the concrete pad and tank had already been in place for about two years as a result of earlier proceedings. This appeal marks the second occasion on which this court has considered this case. We review the prior history.

On April 12, 1999, the VFW applied to the Board seeking “Sketch Plan Review” and “Final Site Plan Review” for placement of the tank. The Board conducted hearings and considered evidence in favor of and opposed to the proposal. The objectors now before us voiced their opposition then. The Board concluded the application satisfied the criteria for a minor site plan, was an accessory use, and did not require a use variance. The Board approved the application on that basis. The objectors3 filed an action in lieu of prerogative writs against the YFW and the Board. The Law Division judge reversed, finding that the Board’s action was jurisdictionally deficient and the tank memorial was not an accessory use. The tank had already been installed. The judge’s [303]*303final order, entered March 7, 2000, required removal of the tank unless within forty-five days the VFW either appealed or filed a new application to the Board, in which case the removal requirement would be stayed. The VFW appealed, and the tank remained.

On May 21, 2001, a panel of this court affirmed in an unpublished opinion. Cohen v. Scully-Bozarth Post 1817 VFW (A-3858-99T1). We determined that installation of the tank memorial constituted an expansion of a nonconforming use and required a use variance under N.J.S.A. 40:55D-70d(2). We continued the stay, conditioned upon the filing within thirty days of an application to expand the nonconforming use. The VFW timely filed its application.

The Board conducted hearings on October 24, 2001 and December 19, 2001. The Board considered the transcribed testimony and other evidence from the earlier hearings. It viewed videotapes of the VFW property and surrounding neighborhood. The Board members had the opportunity to see the tank in position and thus view first-hand its appearance and relation to the surrounding area. The objectors and the VFW were represented by counsel. A number of neighboring property owners spoke in opposition, complaining that the cirea-1970 tank, by its nature, was not appropriate in this historic eighteenth and nineteenth century setting.

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Bluebook (online)
827 A.2d 1129, 362 N.J. Super. 296, 2003 N.J. Super. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scully-bozarth-post-1817-of-the-veterans-of-foreign-wars-of-the-united-njsuperctappdiv-2003.