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365 Spotswood/Englishtown Road, LLC v. Zoning Board of Adjustment of the Township of Monroe

A-5528-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — Where a prior use variance imposes restrictions that are specifically tied to the then-current zoning of the property, and evidence shows a clear intent that such requirement was related to the then-current zoning, the variance condition should be removed, upon application, when the zoning has changed and the restriction no longer has a logical relationship to the new zoning.

A shopping center owner applied to the municipal zoning board to remove an unrecorded restriction in a use variance affecting its property. The owner’s property was developed and used as a shopping center. When the prior owner owned the property, the majority of the property was located in a business zone but a small portion was in a residential zone. When the prior owner sought approval for retail parking on the residential portion, the zoning board required it to create and maintain a tree buffer to separate the shopping center from the adjoining residential properties.

Twenty years later, the municipality’s master plan was modified. As a result, the owner’s property was now in a neighborhood commercial zone where shopping centers were a permitted use. The owner applied to the planning board for approval to expand the shopping center. At the planning board’s suggestion, the owner applied to the zoning board to either remove the buffer requirement or for a variance to allow it to expand the shopping center without the buffer.

The municipality’s planner concluded that the zoning change rendered the variance’s buffer restriction moot. He advised the municipality that, based on the zoning change, the owner’s application conformed to the current zoning requirements without the need for a use variance. The zoning board, however, questioned how the removal of the buffer requirement would affect the neighboring residential property owners. Those neighbors were upset about the earlier zoning change and requested an adjournment so that they could voice their opposition and possibly retain counsel to represent their interests. The owner objected to any adjournment. It argued that since its application was complete, the zoning board was required to render a decision within 120 days or the application would be deemed approved. Further, it had no obligation to consent to any adjournment request. After the owner refused to consent to an adjournment, the zoning board unanimously rejected the owner’s application. At the owner’s request, each zoning board member stated that the basis of his or her vote was his or her feeling that more time was needed to give the residents an understanding of the zoning change years earlier.

The owner sued and the lower court reversed the zoning board’s decision finding that it was uncontroverted that the property’s zoning changed to neighborhood commercial and was now completely within a zone permitting retail use, which obviated the need for the prior use variance with the buffer restrictions. It found that the prior use variance imposing the buffer restrictions specifically referenced the residential portion of the property, evidencing a clear intent to require the buffer only so long as a portion of the property remained in the residential zone. Since the circumstances changed, the tree buffer was no longer necessary and could be eliminated.

The zoning board appealed, but the Appellate Division affirmed. The Court held that without determining whether the property owner was required to seek a variance, the zoning board should have considered the owner’s application on its merits instead of denying it based on the owner’s refusal to agree to an adjournment. The Court found that the owner had submitted a complete application and twice had agreed to adjournments which pushed the application to the 120-day deadline for the zoning board to act. The Court also noted that the neighbors had an opportunity to participate in the hearing, but other than voicing their displeasure with the removal of the buffer, they did not offer a legal basis for challenging the owner’s application. It found that the owner had no obligation to agree to adjourn the hearing to accommodate the residents. Furthermore, the basis of the neighbors’ objections was not the owner’s application itself (which was consistent with the modified zoning ordinance), but with the modified zoning ordinance passed years earlier. The Court ruled that, in the interest of justice, the application should not be remanded back to the zoning board for further review. Instead, it removed the tree buffer as a requirement for the shopping center.


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