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STATE COURT CASES ADMINISTRATIVE LAW � LOTTERY LICENSURE 01-2-8161 I/M/O Riku Liquor Store, App. Div. (per curiam) (4 pp.) The State Division of Lottery justifiably revoked appellant’s lottery license where its principals certified on their renewal application that they had not been arrested, convicted, or the subject of any disciplinary action in connection with the operation of the liquor store, when, in fact, the Alcoholic Beverage Comission had revoked their liquor license because one of the officers of the corporation was charged with selling cocaine at the store, a fact of which both of the signatories were well aware at the time the renewal application was submitted. CONDEMNATION � PARKING ORDINANCES 44-2-8162 N.J. Turnpike Authority, etc. v. Forsgate Industrial Complex, etc., et al., App. Div. (per curiam) (41 pp.) The court affirms the final judgment awarding respondent Forsgate $3,954,000 as just compensation for the plaintiff’s taking of its property, and denying plaintiff’s motion to amend its pleadings to require the payment of certain taxes from the proceeds of the condemnation award. The respondent’s vacant property was condemned by plaintiff for the construction of a new exit ramp off the Turnpike at exit 8A in South Brunswick. Inter alia, the record supports the trial judge’s conclusion that the highest and best use of the property was a 200-room, limited service hotel offering a pool, meeting rooms, a restaurant, and retail shops. The record also supports his consideration of the evidence and calculation of the valuation of the award. As to parking, the judge aptly concluded that ordinance 18-00 amended the general, off-street parking requirements contained in the Township Land Use Code, but did not amend the specific, conditional use parking provisions found in the Section 62 ordinance. Finding that the parking requirements of the Section 62 ordinance applied, and that much of plaintiff’s planner’s testimony was unreliable, the judge rejected his opinion that the number of required parking spaces could be significantly reduced via a variance or waiver. CONTRACTS � JOINT VENTURES � DEBTOR/CREDITOR 11-2-8163 Estate of Pittas, Jr., etc. v. Scugoza, Jr., et al., App. Div. (per curiam) (14 pp.) The parties represent the estates of two long-time business associates, who failed to quantify the nature of their financial relationship prior to their deaths. Reviewing the record, the appellate court is satisfied that a sufficient factual basis exists to support the trial court’s findings and conclusions that plaintiff’s decedent was not an equitable owner of Crossridge. The court is also unpersuaded by the argument of error in the trial court’s denial of plaintiff’s claim that the monies transferred from plaintiff’s decedent to the defendant’s decedent represented a loan now due from defendant’s estate. Plaintiff’s proofs did not rebut the legal presumption arising from the transfer of money from one person to another, either by cash or check, where the parties stand upon an equal footing, which is, that it was in payment of a debt. Defendant successfully showed at trial evidence that plaintiff borrowed money from defendant, which included a promissory note; however, the credible evidence did not support the argument that defendant borrowed money from plaintiff that remained due and owing. In fact, in numerous affidavits to governmental agencies, plaintiff denounced any obligation due from defendant. Plaintiff’s suggestion that although there were frauds perpetrated on government agencies, the frauds were designed to maintain the parties’ financial and business relationship, is specious. LABOR AND EMPLOYMENT � UNEMPLOYMENT COMPENSATION 25-2-8164 Mostafa v. Bd. of Review, etc., et al., App. Div. (per curiam) (5 pp.) Because claimant was not eligible for all of the unemployment compensation benefits he received, he must refund, in full, the amount of the overpayments, regardless of his good faith. LAND USE � DEVELOPMENT � UNREASONABLY ADVERSE IMPACT 26-2-8165 Citizens United to Protect the Maurice River and Its Tributaries, Inc., et al. v. City of Millville Planning Board, et al., App. Div. (Lisa, J.A.D.) (28 pp.) The process by which a planning board determines whether a general development plan (GDP) “will not have an unreasonably adverse impact on the area in which it is proposed to be established,” see N.J.S.A. 40:55D-45d, is intended to be general in nature and to provide the increased flexibility desirable to promote mutual agreement between a developer and planning board regarding the basic scheme of a planned development. Consideration should be from the standpoint of probable feasibility, with more detailed presentation deferred until subsequent applications for preliminary site-plan and subdivision approvals. Applying this standard, the planning board here had before it sufficient evidence to support its determination that the proposed GDP would not have an unreasonably adverse impact, and the Law Division judge aptly upheld the board’s approval. [Approved for publication.] LAND USE � SUBDIVISIONS � ENVIRONMENTAL ISSUES 26-2-8166 Scudese, et ux. v. Washington Twp. Planning Bd., et al.; two other captions, App. Div. (per curiam) (5 pp.) The panel is satisfied that nothing the Planning Board did regarding the application for subdivision approval, including the ways in which it dealt with water quality issues and environmental impacts because of putative septic system limitations and other concerns, was so patently flawed as to amount to arbitrary, capricious or unreasonable action. The Planning Board’s approval grants were well supported by the record before it. There has been no adequate showing that the Board’s actions derogated statewide water quality management rules or any other standards within the purview of the D.E.P. NEGLIGENCE � MOTEL SWIMMING POOLS 31-2-8167 Ramberan, etc., et al. v. Hialeah Resort Motel, et al., App. Div. (per curiam) (13 pp.) The plaintiffs’ seven-year-old daughter drowned in defendant’s motel swimming pool while on a family vacation. Reviewing the regulation of public swimming facilities in N.J.S.A. 26:4A-4 to -7 and N.J.A.C. 8:26-5.1 to 5.14, the court notes that defendant’s pool is a specially exempt facility and rejects plaintiffs’ contention that the defendant lost its status as such because the sign posted at the pool failed to contain the statement that the pool would be closed when the owner of manager was not on the premises. The court also disagrees with plaintiffs’ assertions that the trial court erred: (1) when it did not submit to the jury the question of whether defendant was required to have a lifeguard present in light of the fact that the pool contained both a diving board and a slide; (2) when it limited the scope of their expert witness regarding the clarity of the pool water and improper depth markings; and (3) when it refused to submit to the jury the question of whether defendant was culpably at fault because the sign posted at the pool did not fully comply with the governing statute and regulation. Inter alia, there was nothing to indicate that the water quality or depth markings had anything to do with this tragic accident; nor was there any causal link between the deficient signage and the girl’s death. The court is, however, concerned about one aspect of the trial court’s rulings and charge. N.J.S.A. 26:4A-5 requires the pool of a specially exempt facility to be closed when the owner or manager is not present on the premises. The testimony showed that defendant’s owner had left the motel to check on another motel he owned, and left his mother in charge of the desk. Faced with plaintiffs’ argument that the pool should have been closed, the trial court determined that the mother was acting as manager and that there was no statutory violation. The appellate court finds this determination should have been made by the jury, and that the judge erred in resolving the issue. On re-trial, this issue should be re-examined. If the jury finds the mother was acting as manager, the matter is concluded. If not, the jury will have to go on to consider whether the defendants’ failure to close the pool when no manager was present constituted negligence, and, if so, whether that negligence was a proximate cause of the accident. Defendants would only be liable if the jury found in favor of plaintiff on all three questions. � -Susan M. Clapp, Esq., Editor

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