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Baziotis v. Zoning Board of Adjustment of the Village of Ridgewood

A-4110-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — A zoning board may not rely on an unsupported assumption of fact in assessing the relative benefits and harms of an application.

To better meet the needs of their children and to eliminate the risks associated with a pool, a family sought a variance to build a basketball court in place of a pre-existing swimming pool. Under the municipality’s zoning ordinance, both structures were prohibited in front yards within residential zones. A neighbor objected, but after balancing the harms and benefits of the application, the zoning board granted the application.

New Jersey law requires a use variance grant to be upheld if, after adequate proofs are presented, the zoning board, without arbitrariness, concludes that the harms, if any, are substantially outweighed by the benefits. Additionally, it must be shown that the variance can be granted without substantial detriment to the public good and without substantially impairing the intent and the purpose of the zone plan and zoning ordinance. According to the Court, however, this board started with the assumption that the pool was lawfully in place as authorized by a previously granted variance. That assumption was unsupported by the record.

Although the board determined that the proposed basketball court would not have any more of an effect on the surrounding properties than the existing swimming pool, it failed to recognize that the rights of the owner of a structure approved by variance and that same owner’s right to install a nonconforming structure are different. Thus, the board’s finding was unsupported by the record. In reversing and remanding because of that lack of support on the record, the Court noted that such remand was not an expression of the Court’s view of the merits of the application.

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