JACKSON – The Jackson Zoning Board of Adjustment has granted use variances to two applicants who sought municipal approval to construct 192 apartments on West Veterans Highway (Route 528).
The applicants were Dr. Ira Port and Alan Cohn.
One application sought a use variance for a 29-acre tract in a Neighborhood Commercial (NC) zone. The property has an existing diner. The applicants proposed to construct 112 apartments in seven two-story buildings and 23,000 square feet of commercial space. The site is referred to as Parcel A.
A second application sought a use variance for an 11-acre site in an NC zone. The property is partially improved with a 14,500-square-foot commercial building. The applicants proposed to construct 80 apartments in five two-story buildings and 7,000 square feet of new commercial space. The site is referred to Parcel B.
The granting of a use variance requires five affirmative votes from zoning board members.
Testimony on the applications filed by Port and Cohn was presented to the zoning board on June 5. Following the conclusion of testimony, separate motions were made to grant the use variances.
Each motion resulted in a 4-3 vote in favor of approval, but both motions failed to pass because the five-vote threshold was not achieved.
The applications were back before the zoning board on Aug. 7 and the board’s attorney, Sean Gertner, explained what occurred.
“A motion for reconsideration was made, based primarily on a perception the board needed further clarification on a point of law. It is a procedure that occurs more regularly in a normal court setting, but because the zoning board is a quasi-judicial board, the opportunity to make that argument in front of this board also exists and that is what occurred,” Gertner said.
He said Port and Cohn sought reconsideration because their applications received a majority approval on June 5, but not a super-majority of five affirmative votes.
Attorney Kenneth Pape represented the applicants at the Aug. 7 meeting. Pape said he would not re-argue the request for the use variances, but instead sought to clarify for the board the distinction between the granting of a use variance and the rezoning of a property.
He offered information about cases which had been before state courts on similar instances – the granting of a use variance or the rezoning of a property.
Gertner summarized Pape’s legal argument for the board members. He said the power to zone is vested in the local governing body. However, the Municipal Land Use Law of 1975 eliminated the mandated rule of the governing body to grant use variances, thereby enhancing the need for zoning boards to adhere strictly to their limited role in land use administration.
“At the end of the day, from what I hear from Mr. Pape’s argument, (the board) has the right to hear something different; is this a unique set of circumstances? It is, relative to the parcel that is before you. The parcel is relatively small both in terms of its size generally, and certainly in size (compared to) other NC zones and the township as a whole,” Gertner said.
He said there are mixed uses on surrounding properties and said, “This is a very individualized and particular circumstance. The flip of (the applicant’s) argument … is that you (Pape) are asking the municipality to spot zone this very small, unique set of circumstances.”
On June 5, a motion was made to grant a use variance for Parcel A. Board members Carl Book Jr., Steve Costanzo, Peter Maher and Gary Miller voted “yes.” Board members Sheldon Hofstein, Joseph Sullivan and Denis Weigert voted “no.” The motion failed to garner five “yes” votes and was deemed to have failed.
Also on June 5, a motion was made to grant the use variance for Parcel B. Book, Costanzo, Maher and Miller voted “yes.” Hofstein, Sullivan and Weigert voted “no.” The motion failed to garner five “yes” votes and was deemed to have failed.
After listening to the legal arguments on Aug. 7, Sullivan said that “given the testimony tonight, and from what I have read, we can now state this (application) is not a rezoning, and since this is not a rezoning, I will (vote) yes.”
On a motion to grant the use variances on Parcel A and Parcel B, Book, Costanzo, Maher, Miller and Sullivan voted “yes.” Weigert and Hofstein voted “no.” With five affirmative votes, the use variances were granted.
The applicants will return to the board at a future date to seek preliminary and final site plan approval for the planned apartments.
