All land use board meetings are open for public participation. At times when neighbors come out and voice strong to controversial applications for development, the Board and developers minimize the credibility and weight of the neighbors' objections by saying they lack standing to object unless they own property within 200 feet of the subject property.
A just released published ruling from the New Jersey Appellate Division makes it crystal clear that you do not need to own property within 200 feet to have standing.
The matter involves an application filed by Blue Violets LLC to operate an adult "micro" cannabis retail business in the City of Hoboken. Neighbors voiced their objections at the Planning Board's public hearings. After the Board approved the application, members of the greater public formed Hoboken for Responsible Cannabis, Inc. (HFRC) and filed suit to overturn the Board's approval.
Blue Violets argued that the HFRC corporation lacked standing as they are not individual neighbors of their project.
In a published opinion just released, Appellate Division Judges Gilson, Firko and Bishop-Thompson rejected these arguments.
Courts may not entertain proceedings by plaintiffs who: (1) "do not have sufficient legal standing to maintain their actions"; or (2) "are 'mere intermeddlers,' or are merely interlopers or strangers to the dispute." Cherokee LCP Land, LLC v. City of Linden Plan. Bd., 234 N.J. 403, 423 (2018) (Timpone, J., dissenting) (first quoting Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 660 (1957); and then quoting Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 (1971)).
A party has standing only if the party "demonstrates 'a sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm . . . in the event of an unfavorable decision.'" Edison Bd. of Educ., 464 N.J. Super. at 305-06
"[T]he MLUL contains specific requirements for standing, both before the land use [B]oard and before the court." Id. at 306; see also Cox et al., New Jersey Zoning & Land Use Administration, § 40-4.1 (2024) (noting generally "standing to appeal decisions taken at a municipal level [to be] consistent with standing to appear before those bodies or officers"). The MLUL recognizes "development on one parcel of land can have consequences for others" and, as such, provides, in relevant part, an "interested party may appeal to the governing body any final decision of a [B]oard of [A]djustment approving an application for development." Cherokee LCP Land, 234 N.J. at 407, 416 (emphasis added) (quoting N.J.S.A. 40:55D-17(a)).
The MLUL defines an "interested party" 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]. [Id. at 416 (alterations in original) (quoting N.J.S.A. 40:55D-4).]
As such, our Supreme Court has held although a reviewing court must take "a liberal approach to standing in zoning cases and . . . broadly construe[] the MLUL's definition of 'interested party,'" standing still requires a party to establish both: (1) a "right to use, acquire, or enjoy property"; and (2) "that right 'is or may be affected.'" Id. at 416-17 (first quoting DePetro v. Township of Wayne Plan. Bd., 367 N.J. Super. 161, 172 (App. Div. 2004); and then quoting N.J.S.A. 40:55D-4). The MLUL's definition of an "interested party" "should be understood in the context of the MLUL generally," and, as such, a party's right of "use, enjoyment or right to acquire should always be evaluated in terms of the purpose of the MLUL." Edison Bd. of Educ., 464 N.J. Super. at 306 (quoting Cox et al., § 18-2.2).
Here, we are satisfied both HFRC and Urtecho had standing as "interested parties." HFRC is composed of residents of Hoboken, including Urtecho, who appealed the Planning Board's final decision "approving an application for development," see Cherokee LCP Land, 234 N.J. at 407, 416 (quoting N.J.S.A. 40:55D-17(a)). Moreover, HFRC and Urtecho inherently have standing to challenge the Planning Board's "Approval of Conditional Use," which may impact HFRC's and Urtecho's rights of use and enjoyment of their properties by virtue of the potential impact on Hoboken's zoning plan or the community welfare. See Edison Bd. of Educ., 464 N.J. Super. at 306; Booth v. Board of Adjustment of Rockaway Twp., 50 N.J. 302, 305 (1967); see also Cherokee LCP Land, 234 N.J. at 407 (recognizing the "development on one parcel of land can have consequences for others"); DePetro, 367 N.J. Super. at 171 (noting a substantial "interest exists in the preservation of the integrity of a zoning ordinance").
This published ruling makes it crystal clear that any person, whether residing within or without the municipality, whose "rights of use and enjoyment of their properties by virtue of the potential impact on the Township's zoning plan or the community welfare may be impacted by the proposed land use application" has standing to object to the application.
It may also be possible from this ruling to sue a Board that rejects public comments solely because the objectors don't own property within 200 feet.
Attorney Daniel L. Steinhagen of Beattie Padovano, LLC represented Hoboken for Responsible Cannabis, Inc.
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