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529 Waterfront Properties, LP v. The Nugent Group, LLC

A-3229-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — Municipal deference given to land use boards is based on an assumption that local boards ordinarily will not grant variances that would be substantially detrimental to neighboring properties or that would be incompatible with the zoning plan, nor will they deny variances where the proofs incontestably establish the need for variance relief and demonstrate no threat to the neighborhood or zone plan.

A restaurant operator was the contract purchaser of restaurant property located in a marine-commercial zone. It filed an application with the municipality’s land use board for preliminary and final site plan approval, together with any variances necessary to operate a restaurant with a bar on the property. The board granted site plan approval and granted a variance from the municipality’s on-site parking regulations subject to the discontinuance of a restaurant owned by the applicant several blocks away from the subject restaurant. It concluded that the existing and contemplated use was clearly permitted in the zone and did not constitute a pre-existing non-conforming use. If also found that the proposed use would reduce traffic; that the number of patrons at the restaurant would not increase; and that the number of anticipated bar patrons in the late evening hours would not pose a new and independent parking problem. A third party appealed.

The Law Division upheld the board’s decision, holding that the board’s findings of fact were supported by the hearing record and thus were not arbitrary, capricious or unreasonable. It found that the granting of the variance could be made without substantial detriment to the public good, and without substantially impairing the intent and purpose of the zone plan and the zoning ordinance. It noted that the record reflected that the footprint of the restaurant would not change, and there would be a total reduction in seating capacity within the two or three block area surrounding the restaurant because of the closing of the other restaurant owned by the applicant. The third party appealed further.

The Appellate Division affirmed, noting that the rationale of limited appellate review is that local officials are generally more familiar with their municipality’s interests and are best equipped to pass initially on applications for variance. They also noted that the principle of deference is based on an assumption that local boards ordinarily will not grant variances that would be substantially detrimental to neighboring properties or that would be incompatible with the zoning plan, nor will they deny variances where the proofs incontestably establish the need for variance relief and demonstrate no threat to the neighborhood or zone plan. The Court concluded that the benefits to the surrounding community resulting from the closure of the applicant’s other restaurant substantially outweighed any detriment that could result from the deviation from the on-site parking requirements.


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