In 800 Sylvan Ave. LLC v. Planning Bd. of Borough of Englewood Cliffs, the Appellate Division addressed one of several land disputes involving the former Unilever campus in Englewood Cliffs…
In 800 Sylvan Ave. LLC v. Planning Bd. of Borough of Englewood Cliffs, the Appellate Division addressed one of several land disputes involving the former Unilever campus in Englewood Cliffs. In a per curium opinion, the appeals court held that the planning board litigation was not moot even though the court had previously approved a settlement agreement in affordable housing litigation involving the same property.
Land Use Dispute
The land use dispute centers on Plaintiff 800 Sylvan Avenue LLC’s twenty-eight-acre property located at 800 Sylvan Avenue in the Borough of Englewood Cliffs (Borough), consisting of three multipurpose interconnected buildings (“A,” “B-2,” and “B-3”). The property, which is the site of the former Unilever corporate campus, is currently used for general office space, research, and storage, and is located in the B-2 Limited Business District zone.
According to court documents, on May 17, 2017, the Plaintiff applied for a preliminary and final major site plan and subdivision approval with variances, pursuant to N.J.S.A. 40:55D- 70(c) and (d). The Plaintiff specifically sought to: (1) subdivide the property into two lots with proposed Lot 1 comprising of the new office building (building A and B-3) and approximately 20.039 acres and proposed Lot 1.01 comprising of buildings B-1 and C and approximately 8.332 acres; (2) demolish building B-2 and demolish portions of other structures on the lot to create two separate buildings; and (3) refurbish and rebuild approximately 266,655 square feet and construct an additional 26,069 square feet of office space and construct two new parking structures on proposed Lot 1. The Plaintiff’s application sought multiple (c) variances, as well as one (d)(6) variance.
The Board ultimately denied the application. Among other findings, it concluded that the Plaintiff “did not demonstrate that the public benefits of the subdivision outweigh the detriments.” Regarding the off-site parking, the Board’s resolution found that the Plaintiff did not “meet its burden of demonstrating the ‘positive’ and ‘negative’ criteria to justify granting of the variances as is required by N.J.S.A. 40:55D-70(c)(2).” Regarding the second proposed parking structure, the Board also found that the Plaintiff failed to demonstrate the benefits outweighed the detriments.
The Plaintiff subsequently filed suit, arguing that the Board’s denial was arbitrary, capricious, and unreasonable. The trial court reversed the Board’s denial and entered an order approving the Plaintiff’s application in part. The trial court also remanded one of the Plaintiff’s variance applications to the Board for consideration as to whether the Plaintiff could demonstrate special reasons required for a variance under N.J.S.A. 40:55D-70(d). When both parties sought reconsideration of the initial order, the trial court denied it, finding the matter was moot because the Plaintiff had reached a settlement agreement with the Borough to construct several hundred units of affordable housing on the property.
Appellate Division’s Decision
The Appellate Division affirmed in part and vacated in part. After concluding the appeal was not moot, it upheld the trial court’s subdivision approval as well as its application of a (d) variance standard to its proposed accessory parking structure variance standard.
The appeals court first concluded that the appeal was not moot, citing that the housing settlement agreement was not conditioned on the Plaintiff relinquishing its rights in the litigation.
“It is undisputed that plaintiff cannot proceed with both projects. However, the presence of the ongoing affordable housing litigation does not mean plaintiff has forfeited the approval of its site plan and variance application as memorialized it the trial court’s March 2019 order,” the Appellate Division explained. “The housing settlement agreement was not conditioned on plaintiff relinquishing its rights in this litigation. The settlement agreement also contains a provision acknowledging this litigation and agreeing to relinquish all appellate rights arising out of the affordable housing litigation. There are no other references to this matter in the settlement agreement.”
The Appellate Division next turned to whether the trial court erred in approving the subdivision of the property. As the court explained, if a subdivision application meets the local ordinances and provisions of the MLUL, the Planning Board must approve it. In this case, the Appellate Division found that the record supported the trial court’s findings.
“The Board hearing record contains more than sufficient evidence demonstrating the benefits of plaintiff’s proposal, including: aesthetic improvement along Sylvan Avenue; modernization of the property; a net increase of trees and green space to the site; and improved circulation throughout the property,” the court wrote.
The Appellate Division also found that the Board’s concern that the Plaintiff did not propose to improve Lot 1.01 was not dispositive. In support, it cited that Unilever will occupy the property for another 14 years, and the Plaintiff “cannot modernize a structure it does not control.” The court also noted that the Plaintiff’s proposal also included a reciprocal easement agreement, which would keep the current parking arrangements in place.
Finally, the Appellate Division rejected the Plaintiff’s argument that the trial court erred by applying a (d) variance standard to its proposed accessory parking structure variance standard. As noted by the appeals court, the trial court found a plain reading of Zoning Ordinance § 30- 7.2(a)(4) prohibited parking structures and further mandated that the surface parking be at grade level.
“Given the language of the ordinance, the court correctly concluded that plaintiff’s application for a proposed accessory parking structure required a (d) variance analysis, including a showing of ‘special reasons,’” the court wrote. “The trial court’s analysis was sound, and we see no basis under our standard of review to disturb its order on this question.”
Key Takeaway
As the Appellate Division’s decision makes clear, it is possible for developers to pursue two different plans for a property — even during litigation. However, to ensure that your legal rights are preserved, it is imperative that any settlement agreement clearly states what matters are being resolved.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Patrick J. McNamara, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Does Your Homeowners Insurance Provide Adequate Coverage?
Your home is likely your greatest asset, which is why it is so important to adequately protect it. Homeowners insurance protects you from the financial costs of unforeseen losses, such as theft, fire, and natural disasters, by helping you rebuild and replace possessions that were lost While the definition of “adequate” coverage depends upon a […]
Understanding the Importance of a Non-Contingent Offer
Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and […]
Fred D. Zemel Appointed Chair of Strategic Planning at Scarinci & Hollenbeck, LLC
Business Transactional Attorney Zemel to Spearhead Strategic Initiatives for Continued Growth and Innovation Little Falls, NJ – February 21, 2025 – Scarinci & Hollenbeck, LLC is pleased to announce that Partner Fred D. Zemel has been named Chair of the firm’s Strategic Planning Committee. In this role, Mr. Zemel will lead the committee in identifying, […]
Novation Agreement Process: Step-by-Step Guide for Businesses
Big changes sometimes occur during the life cycle of a contract. Cancelling a contract outright can be bad for your reputation and your bottom line. Businesses need to know how to best address a change in circumstances, while also protecting their legal rights. One option is to transfer the “benefits and the burdens” of a […]
What Is a Trade Secret? Key Elements and Legal Protections Explained
What is a trade secret and why you you protect them? Technology has made trade secret theft even easier and more prevalent. In fact, businesses lose billions of dollars every year due to trade secret theft committed by employees, competitors, and even foreign governments. But what is a trade secret? And how do you protect […]
What Is Title Insurance? Safeguarding Against Title Defects
If you are considering the purchase of a property, you may wonder — what is title insurance, do I need it, and why do I need it? Even seasoned property owners may question if the added expense and extra paperwork is really necessary, especially considering that people and entities insured by title insurance make fewer […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Appellate Division Rules NJ Planning Board Litigation Is Not Moot
Author: Scarinci Hollenbeck, LLC
In 800 Sylvan Ave. LLC v. Planning Bd. of Borough of Englewood Cliffs, the Appellate Division addressed one of several land disputes involving the former Unilever campus in Englewood Cliffs…
In 800 Sylvan Ave. LLC v. Planning Bd. of Borough of Englewood Cliffs, the Appellate Division addressed one of several land disputes involving the former Unilever campus in Englewood Cliffs. In a per curium opinion, the appeals court held that the planning board litigation was not moot even though the court had previously approved a settlement agreement in affordable housing litigation involving the same property.
Land Use Dispute
The land use dispute centers on Plaintiff 800 Sylvan Avenue LLC’s twenty-eight-acre property located at 800 Sylvan Avenue in the Borough of Englewood Cliffs (Borough), consisting of three multipurpose interconnected buildings (“A,” “B-2,” and “B-3”). The property, which is the site of the former Unilever corporate campus, is currently used for general office space, research, and storage, and is located in the B-2 Limited Business District zone.
According to court documents, on May 17, 2017, the Plaintiff applied for a preliminary and final major site plan and subdivision approval with variances, pursuant to N.J.S.A. 40:55D- 70(c) and (d). The Plaintiff specifically sought to: (1) subdivide the property into two lots with proposed Lot 1 comprising of the new office building (building A and B-3) and approximately 20.039 acres and proposed Lot 1.01 comprising of buildings B-1 and C and approximately 8.332 acres; (2) demolish building B-2 and demolish portions of other structures on the lot to create two separate buildings; and (3) refurbish and rebuild approximately 266,655 square feet and construct an additional 26,069 square feet of office space and construct two new parking structures on proposed Lot 1. The Plaintiff’s application sought multiple (c) variances, as well as one (d)(6) variance.
The Board ultimately denied the application. Among other findings, it concluded that the Plaintiff “did not demonstrate that the public benefits of the subdivision outweigh the detriments.” Regarding the off-site parking, the Board’s resolution found that the Plaintiff did not “meet its burden of demonstrating the ‘positive’ and ‘negative’ criteria to justify granting of the variances as is required by N.J.S.A. 40:55D-70(c)(2).” Regarding the second proposed parking structure, the Board also found that the Plaintiff failed to demonstrate the benefits outweighed the detriments.
The Plaintiff subsequently filed suit, arguing that the Board’s denial was arbitrary, capricious, and unreasonable. The trial court reversed the Board’s denial and entered an order approving the Plaintiff’s application in part. The trial court also remanded one of the Plaintiff’s variance applications to the Board for consideration as to whether the Plaintiff could demonstrate special reasons required for a variance under N.J.S.A. 40:55D-70(d). When both parties sought reconsideration of the initial order, the trial court denied it, finding the matter was moot because the Plaintiff had reached a settlement agreement with the Borough to construct several hundred units of affordable housing on the property.
Appellate Division’s Decision
The Appellate Division affirmed in part and vacated in part. After concluding the appeal was not moot, it upheld the trial court’s subdivision approval as well as its application of a (d) variance standard to its proposed accessory parking structure variance standard.
The appeals court first concluded that the appeal was not moot, citing that the housing settlement agreement was not conditioned on the Plaintiff relinquishing its rights in the litigation.
“It is undisputed that plaintiff cannot proceed with both projects. However, the presence of the ongoing affordable housing litigation does not mean plaintiff has forfeited the approval of its site plan and variance application as memorialized it the trial court’s March 2019 order,” the Appellate Division explained. “The housing settlement agreement was not conditioned on plaintiff relinquishing its rights in this litigation. The settlement agreement also contains a provision acknowledging this litigation and agreeing to relinquish all appellate rights arising out of the affordable housing litigation. There are no other references to this matter in the settlement agreement.”
The Appellate Division next turned to whether the trial court erred in approving the subdivision of the property. As the court explained, if a subdivision application meets the local ordinances and provisions of the MLUL, the Planning Board must approve it. In this case, the Appellate Division found that the record supported the trial court’s findings.
“The Board hearing record contains more than sufficient evidence demonstrating the benefits of plaintiff’s proposal, including: aesthetic improvement along Sylvan Avenue; modernization of the property; a net increase of trees and green space to the site; and improved circulation throughout the property,” the court wrote.
The Appellate Division also found that the Board’s concern that the Plaintiff did not propose to improve Lot 1.01 was not dispositive. In support, it cited that Unilever will occupy the property for another 14 years, and the Plaintiff “cannot modernize a structure it does not control.” The court also noted that the Plaintiff’s proposal also included a reciprocal easement agreement, which would keep the current parking arrangements in place.
Finally, the Appellate Division rejected the Plaintiff’s argument that the trial court erred by applying a (d) variance standard to its proposed accessory parking structure variance standard. As noted by the appeals court, the trial court found a plain reading of Zoning Ordinance § 30- 7.2(a)(4) prohibited parking structures and further mandated that the surface parking be at grade level.
“Given the language of the ordinance, the court correctly concluded that plaintiff’s application for a proposed accessory parking structure required a (d) variance analysis, including a showing of ‘special reasons,’” the court wrote. “The trial court’s analysis was sound, and we see no basis under our standard of review to disturb its order on this question.”
Key Takeaway
As the Appellate Division’s decision makes clear, it is possible for developers to pursue two different plans for a property — even during litigation. However, to ensure that your legal rights are preserved, it is imperative that any settlement agreement clearly states what matters are being resolved.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Patrick J. McNamara, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
