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Applicants before zoning boards and planning boards must prove that their application is consistent with local zoning. In other words, as a general matter, only residential applications can be approved within zones that are limited to residential use. Likewise, commercial applications are only acceptable in zones that have been designed for that type of use. When an applicant has a proposed use that is inconsistent with local zoning, the applicant is required to apply for what is called a use variance. According to New Jersey land use case law, use variances should not be liberally granted because they are inconsistent with the overall philosophy of sound land use planning in New Jersey. In order to obtain a use variance, an applicant is required to demonstrate that certain criteria established by both statute and case law have been satisfied.
Usually, but not always, the decision of a land use Board will be given tremendous deference by a reviewing court. Courts recognize that local planning boards and zoning boards are the most familiar with local property conditions and the members of these boards are in the best position to determine whether exceptions to the zoning scheme should be granted. Thus, New Jersey land use case law provides that the decisions from zoning boards and planning boards will generally be upheld unless they are found to be arbitrary, capricious or unreasonable.
For this reason, the recent New Jersey Appellate Division decision in Rosenblum v. Closter Zoning Board of Adjustment, No. A–4936–10T3, warrants special consideration. What makes this an interesting case is that the trial court upheld a zoning board decision granting several use variances to store commercial equipment within a residential zone. While the trial court affirmed the Zoning Board’s decision, the Appellate Court reversed, finding that the statutory requirements necessary to grant use variances were in fact not present in the record before the Court.
Rosenblum appeared pro se in the case. The applicant was a gentleman named Crimmins, who had secured use variances which allowed him to store commercial vehicles and materials for his landscaping and construction business on an undersized lot in a residential zone. On August 18, 2010 the local Zoning Board adopted a resolution granting the variances for the continuation of a nonconforming contractor’s yard. The Board found that the property was particularly appropriate for both the residential uses and storage uses due to the depth of the site which permitted the residential structure to remain segregated from the contractor storage portion of the property. The Board also found that there would not be a substantial detriment to the public good or substantial impairment to the purposes of zoning by granting the variances.
On appeal from the Zoning Board, the trial court issued a decision on June 8, 2011 upholding the Board’s resolution, finding that the benefits of the application outweighed the detriments and that the intent and purpose of the master plan was satisfied.
Upon further appeal, the Appellate Division reversed. While the Zoning Board had determined that the property was particularly suited for the proposed use because it was located in an area within which multiple properties had similar characteristics, the Appellate Division refuted this finding noting that there was no determination that the property is a more suitable location for storing the equipment then a commercial lot on another street than the applicant also owned.
The Appellate Division also determined that there was no evidence to support a finding that the proposed use would benefit the general welfare or that the property was particularly suited for the proposed use. In that regard, the appellate panel noted that the particular suitability standard is one that fills a general need in the community where there is no other viable location and the property itself is particularly suited in terms of location, topography or shape. None of those findings were made with regard to this particular property.
The Court also rejected the Board’s determination that the negative criteria were established because the proposed use conflicted with the municipality’s master plan, and in particular a recent examination of the master plan which had urged that the zoning rules be tightly enforced in this community due to a history of prior non-compliance.
In conclusion, the Appellate Division determined that the Board’s decision could not be sustained because the applicant did not satisfy the affirmative or negative requirements set forth at N.J.S.A. 40:55D–70d. For that reason, the lower courts determination to uphold the Board’s decision was reversed.
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