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Appeals Court upholds decision to deny hardship variance due to lack of evidence

A recent decision by the Superior Court of New Jersey’s Appellate Division had reversed the decision of a New Jersey trial court grant of remand. Plaintiff’s hardship application and hearing failed to provide sufficient evidence for the board to grant a hardship variance.


In Ebury Re, LLC, v. Township of Mount Olive Planning Board, plaintiff applied to the Town for a hardship variance to build a two-story, four-bedroom single family home on an undersized lot. At the hearing, Plaintiff presented a real estate agent, an engineer, and a planner. Plaintiff acquired this property in a package of three lots in a tax sale. Plaintiff had offered to sell the lot to the only adjacent neighbor or alternatively buy 2,500 square feet of that neighbor’s over-seized lot to make Plaintiff’s lot conforming. The neighbor rejected both offers. Plaintiff’s engineer presented testimony that the proposed plan would meet the setbacks as well as the building and lot coverage requirements. However, the Town professionals advised the Board this was unlikely as the measurements were based on a thirty-three foot right of way where the ordinance requires a fifty-foot right of way. Plaintiff’s planner testified that the application was a hardship case where the relief relates to the land and not the structures. There had been an attempt to buy additional land and the proposed house would not substantially impair the zone plan. The Board ultimately denied the application. They noted that Plaintiff acquired the property knowing it was undersized, and the evidence provided at the hearing was inadequate to contend that a hardship was created.

Plaintiff filed a prerogative writs action challenging the denial. The Trial Court reversed the matter to the Planning Board to reconsider the application. The Trial Court provided a conflated opinion. They determined the Board had erroneously found that the plaintiff failed to establish the required positive and negative criteria for a hardship variance.

The Board appealed, claiming the trial court overstepped by reversing the Board’s denial of the variance. The Board argued that the trial court erred in applying use variance standards to a hardship variance and by reversing a decision that was supported by sufficient evidence in the records. The Appellate Court distinguished that it was incumbent on the Plaintiff to establish how the hardship was created when applying for a hardship variance. Applying that standard, the Appellate Court found that the Board was correct to find that Plaintiff failed to carry its burden of demonstrating entitlement to the hardship variance. None of Plaintiff’s witnesses even knew when the ordinance was adopted or when the property assumed its current dimensions. In addition, the Appellate Court noted that planning boards are delegated to exercise discretion due to their particular knowledge of local conditions, which is what was done in the instant matter. The Appellate Division agreed and reversed.

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