/>iOn July 25, 2024, the Appellate Division affirmed the lower Court’s decision upholding the Township of Robbinsville Board of Adjustment’s (the “Board”) approval permitting the construction of two light-industrial warehouse/distribution/office facilities (the “Project”) at property located at 824 Robbinsville-Allentown Road Parcel (the “Property”).
The Property previously received Board approval in 2008 for 508,700 square feet of office space, 84,180 square feet of warehouse space, and a 160-room hotel. The Property remained largely undeveloped, except for a single office building and infrastructure.
On January 24, 2020, Johnson Development Associates, Inc. (“JDA” or “Developer”) submitted a site plan application for the Project to the Board in an effort to revitalize the Property. As part of its application, JDA requested use “d(1)” and bulk “c” variance relief from the Board.
JDA elected to bifurcate its application, pursuant to N.J.S.A. 40:55D-76, so that the issue of the use variance could be decided first. Thereafter, on February 23, 2021, the Board conducted a five-hour virtual public hearing to evaluate JDA’s variance application. During the hearing, JDA put forward multiple expert witnesses to testify in support of the application. At the close of JDA’s witness statements, the Board opened the hearing to the public for comment, with each speaker being limited to three minutes. The Board also noted that “if another member of the public makes an argument or statement, we ask it not be repeated.”
18 members from the public testified and objected to JDA’s application, citing to overdevelopment, the impact on adjacent wetlands and wildlife, light and noise pollution, traffic and the bifurcation process.
At the conclusion of the hearing, the Board unanimously approved the variance application subject to certain conditions. The Board’s approval was memorialized via resolution on April 27, 2021.
On June 11, 2021, The Alliance for Sustainable Communities Mercer-Monmouth (“ASC” or “Plaintiff”) filed a complaint in lieu of prerogative writs challenging the Board’s approval of the Project. Plaintiff’s complaint contained several arguments, including allegations that the Board prevented cross-examination and unlawfully deprived the public of an opportunity to speak. In support of its position, Plaintiff cited to the fact that public comment was limited, in both time and subject matter, at the hearing.
The Appellate Division, in reviewing the lower Court’s decision, took notice of the fact that cross-examination of witnesses is a right of all interested parties. However, the Court emphasized that the right to cross-examine witnesses is not an absolute right, but rather subject to reasonable discretion. Relying on N.J.S.A. 40:55D-10(d), Village Supermarkets, Inc. v. Mayfair Supermarkets, Inc., 269 N.J. Super. 224, 238 (Law Div. 1993), and Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 398-400, 413 (App. Div. 1997), the Court found that zoning boards are authorized to manage hearings by limiting the time allotted to speakers, not offering cross-examination of witnesses under certain circumstances, and prohibiting duplicative and irrelevant testimony.
In reaching this decision, the Court noted that the JDA hearing “was unexceptional and not surprising” and included three hours of public testimony. Further, the Board did not strictly apply the three-minute limit for each speaker and permitted the majority of the public commentors to express their full viewpoint without interruption. The Board also permitted some commenters to speak twice.
The Appellate Division’s decision remains consistent with existing precedent, which establishes that proceedings before a board of adjustment are not essentially adverse, and the board is charged with obtaining all facts required by it, and then, in the exercise of its discretion, making a decision which best accords with the rights of the applicant and the interests of the public. See Smith v. Fair Haven Zoning Bd., 335 N.J. Super. 111, 121 (App. Div. 2000); Village Supermarket v. Mayfair, 269 N.J. Super. 224, 238 (Law Div. 1993); see also Lincoln Hgts. v. Cranford Plan. Bd., 314 N.J. Super. 366 (Law Div. 1998), aff’d o.b. 321 N.J. Super. 355 (App. Div.), certif. den. 162 N.J. 131 (1999) (holding that a traffic expert’s absence from one of three hearings did not significantly impair the public’s right to cross-examination, as board’s have discretion to limit testimony and cross-examination in a reasonable matter).
In sum, zoning boards are afforded broad discretion when it comes to limiting testimony and cross-examination, provided that such limitations are reasonable in light of the relevant facts specific to the proceeding. However, developers presenting applications before zoning boards should nonetheless ensure its expert witnesses are available for prolonged cross-examination over the course of multiple hearings to mitigate the risk of appeal.
