A recent unreported Superior Court decision out of the Essex Vicinage shows that the way a Board of Adjustment writes their resolutions matters.

In the case, Simmons v. Zoning Bd. of Adjustment, 2024 N.J. Super. Unpub. LEXIS 2170, the Plaintiffs brought an action challenging Newark’s Zoning Board of Adjustment’s grant of a use variance, bulk variances, and preliminary and final site plan approval.

As the court described, the Municipal Land Use Law gives a municipal board the power to grant a variance in N.J.S.A. § 40:55D-70. A “d(1)” use variance includes both positive and negative criteria, requiring the applicant to show that 1) there are special reasons to allow the variance, 2) the effects on the surrounding property will not be negative, and 3) the variance meets the intent and purpose of the master plan and zoning ordinances.

The court then expounded on the Municipal Land Use Law’s requirements concerning board resolutions, found in N.J.S.A. § 40:55D-10(g). The court stated that board resolutions must contain sufficient findings and details because they are essential to a court’s ability to review the board’s determinations.

In this case, the court found that the Board’s resolution failed to pass muster. While the resolution’s length seemed adequate on the surface, the findings were unrelated to the positive and negative criteria in the Municipal Land Use Law. The resolution was also found to be partially “cut and pasted” from the Board’s planner’s memorandum. The court stated that simply using an expert’s report does not abrogate the Board’s responsibility to make findings of fact and conclusions of law. As the court wrote, “In making factual findings, the board is obligated to consider all the evidence in the case rather than merely to accept as factual every statement made by its own planning consultant. Moreover, the board must explain how its findings support its ultimate legal conclusions.”

The court noted that some of the Board’s resolution language seemed to be “form language,” which was not specific to the project at issue. The court required that the Board explain why the application meets the intent of the zoning ordinances and master plan, and how the particular application will promote the general welfare.

Boards that are looking to draft resolutions that will pass a court’s scrutiny should make sure they include concrete, clear and specific factual findings and legal conclusions that are explicitly based on relevant information. Instead of using copy and pasted language, boards must tailor their resolutions to fit each case.