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250 Passaic, L.L.C. v. Tonymar, L.L.C.

A-2634-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — A land use board’s denial of a variance request is entitled to greater deference than its approval of a variance request because legislative policy has a preference for land use planning by ordinance rather than by variance.

A property owner sought to build a carwash in an industrial zone designated for waterfront development. It applied for a variance because carwashes were not permitted in the zone and new carwashes were prohibited elsewhere in the municipality. According to the municipality’s master plan, the area was designated only for entertainment, recreation, retail, marina, and office uses, and for open space. A professional planner testified on behalf of the property owner at a municipal board of adjustment hearing saying that the area was particularly suitable for use as a carwash and that a modern carwash would not have the same negative impact as older carwashes that discharged soapy water into the streets and storm sewers. She also testified that the proposed use satisfied the positive criteria for a variance because the proposed carwash would draw from existing traffic and would not create new traffic. Also, with few residential buildings in the area, there would be little risk to pedestrian traffic. She also testified that the proposal satisfied the negative criteria for the granting of a variance because with its attractive architecture and landscaping, as well as its adequate traffic circulation and its distance from residential areas, the proposed use would have no negative impact on the area.

The objector’s expert testified that the plans for a waterfront district were intended to increase pedestrian oriented traffic and access to the waterfront from residential areas. The expert also disputed the professional planner’s testimony that the proposed use satisfied both the positive and negative criteria, instead asserting that the carwash was not consistent with the municipality’s plan to improve the visual environment of the adjacent highway. The board approved the variance and adopted a corresponding resolution that deemed the area suitable for the construction of a carwash because of the area’s high level of vehicular traffic, its distance from residential areas, and its contribution to tax revenues and job creation. The objectors sued, challenging the board’s decision and arguing that it was arbitrary and capricious because there were no findings of fact on certain critical issues. The lower court affirmed the board’s decision and found that the resolution was supported by the evidence on the record, but it acknowledged that the board did not offer any fact finding on whether the proposal was consistent with the municipal master plan.

On appeal, the Appellate Division pointed out that while municipal board’s decisions were to receive considerable deference, denials of variance requests were entitled to greater deference than approvals of variance requests and that legislative policy had a preference for land use planning by ordinance rather than by variance. It found that the lower court should not have ruled on whether the board’s decision was arbitrary and capricious without having remanded the matter for additional fact finding and that the evidence on the record could not have supported approval of the variance request. It added that there was no evidence on the record that the property was particularly suited for a carwash and pointed out that the owner never considered any permitted uses for the property. The Court further pointed out that there were other carwashes in the municipality, including one nearby, and also found that testimony of the professional planner on behalf of the property owner never addressed the fact the master plan contemplated a transition of the area from industrial use to a mixed use waterfront development. Based on its findings, the Court held that the proposed use of the property as a carwash did not satisfy the positive or negative criteria necessary for the granting of a variance request and reversed the lower court’s decision upholding the board’s grant of the variance request.


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