Legal Opinion · Dissent

Board of Adjustment v. B.A.P.S. Northeast, Inc.

Court of Appeals for the Third Circuit

Decided July 2, 2001No. 00-2135Published

1DissentAlito, Circuit Judge

I respectfully dissent for two reasons. First, unlike the majority, I do not think that the decision of the Board of Adjustment (“BOA”) denying the variance was arbitrary or capricious. Second, I do not believe that the Bankruptcy Court’s Opinion vacating the condition that the BOA ultimately chose to apply — the hiring of off — duty police officers — is properly before us for review.

I

The New Jersey Legislature has delegated the power to grant or deny variances to local boards of adjustment. See N.J. Stat. § 40:55D-70. However, the Legislature has restricted that power in the following manner:

2Cases cited10 opinions

Anthony R. Hambsch, III v. Department of the Treasury, United States Secret ServiceCourt of Appeals for the Federal Circuit · 1986
Sica v. Board of Adjustment of Tp. of WallSupreme Court of New Jersey · 1992
The Barnes Foundation v. The Township of Lower Merion the Lower Merion Board of Commissioners Gloria P. Wolek, Individually and in Her Capacity as President of the Township Board of Commissioners Frank Lutz, Individually and in His Capacity as Commissioner Kenneth E. Davis, Individually and in His Capacity as Commissioner Phyllis L. Zemble, Individually and in Her Capacity as Commissioner Ora R. Pierce, Individually and in Her Capacity as Commissioner James J. Prendergast, Individually and in His Capacity as Commissioner Alan C. Kessler, Individually and in His Capacity as Commissioner Brian D. Rosenthal, Individually and in His Capacity as Commissioner Joseph M. Manko, Individually and in His Capacity as Commissioner Howard L. West, Individually and in His Capacity as Commissioner W. Bruce McConnel Iii, Individually and in His Capacity as Commissioner James S. Ettelson, Individually and in His Capacity as Commissioner David A. Sonenshein, Individually and in His Capacity as Commissioner Regene H. Silver, Individually and in Her Capacity as Commissioner Steven Asher Ina Asher, H/w Robert Marmon Toby Marmon, H/w Walter Herman Nancy Herman, H/w Arthur Gershkoff Leonard H. Ginsberg Beth R. Ginsberg, H/w Mark Moster Marlene Moster, H/w James Nealon Lester Schaevitz Diane Schaevitz, H/w Michael Toaff Anna Lev-Toaff, H/w Bruce Schainker Ina Asher, Steven Asher, Nancy Herman Walter Herman, Robert Marmon and Toby MarmonCourt of Appeals for the Third Circuit · 2001
Davis Enterprises v. KarpfSupreme Court of New Jersey · 1987
Beverly California Corp., F/k/a Beverly Enterprises, Petitioners/cross-Respondents v. National Labor Relations Board, Respondent/cross-PetitionerCourt of Appeals for the Seventh Circuit · 2000

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