In Campus Associates v. Zoning Board of Adjustment, a contract purchaser brought an application before the local zoning board of adjustment for a use variance to construct affordable housing. The zoning board ultimately denied the application and the contract purchaser opted not to appeal. When the property owner sought to appeal, instead, the zoning board filed a motion to dismiss the complaint on grounds that the owner lacked standing. The trial court granted this motion dismissing the complaint (and denied a motion by the plaintiff for reconsideration and for leave to amend the complaint). On review, the New Jersey Superior Court, Appellate Division, reversed the trial court’s decision to dismiss the complaint on account of standing and issued an opinion on June 4, 2010, __ N.J.Super. __, __ (App. Div. 2010) (slip op. at 2).
The Appellate Division began its analysis of the issue by noting that “[i]n appeals from decisions of boards of adjustment on applications for variances, standing is not limited to the applicant before the board.” Id. at 6. Objectors may sue and “in limited circumstances,” so may the municipal governing body and property owners in adjacent communities. “Thus, the fact that plaintiff was not the applicant does not necessarily deprive it of standing.” Ibid. On the contrary, “[a]s the owner of the land, plaintiff is directly affected by the variance application” and has “a sufficient stake in the outcome to confer standing.” Ibid.
There is real adverseness here with respect to the subject matter since plaintiff seeks to pursue the development of its property along the lines of the [contract purchaser’s] application, either on its own or by involving another developer in the project. This is something that it cannot do without a variance.
Id. at 7.
The Court then went on to distinguish a prior appellate case entitled Spinnaker Condominium Corp. v. Zoning Board of Sea Isle City, reported at 357 N.J.Super. 105 (App. Div.) certif. denied 176 N.J. 280 (2003), which ruled against a property owner, who sought to challenge the denial of a use variance for the installation of wireless antennas where the contract lessee – a telecommunications carrier – chose not to appeal, “because the variance sought was unique to the applicant and ‘would not adhere to the land in the traditional zoning sense.’” Id. at 8 (quoting Spinnaker, supra, 357 N.J.Super at 114). In this regard, the Court reasoned that in order to utilize a use variance for wireless telecommunications purposes, an applicant must be licensed by the Federal Communications Commission so, unlike the applicant, the plaintiff “could not install the facility on its own[ and, therefore,] it was not substantially harmed by the denial.” Id. at 8.
Further, in considering this type of application, a board is required to take into account factors unique to the applicant, namely whether the variance was needed in order to allow that particular wireless telecommunications provider to fill a coverage gap. A subsequent wireless telecommunications provider seeking to install a wireless facility at the same location would have ‘its own discrete, coverage gap’ requiring a separate analysis by a board.”
Id. at 8. (quoting Spinnaker, supra, at 114).
In the instant case, unlike the application in Spinnaker, the use variance applied for was in the nature of “a traditional land use application dependent upon property specific proofs”and, therefore, the plaintiff had sufficient standing to appeal from the zoning board’s denial. Id. at 2, 8.