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Bowie-McCready v. Morristown Zoning Board of Adjustment

A-6071-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — As laudable as it might be that a proposed residential development would generate funds that could be used to preserve an existing historic structure on the applicant’s land, an applicant still needs to establish how doing so would better meet that objective than would the construction of structures conforming with the permitted uses under the relevant zoning ordinance.

A developer sought to construct townhouses on a lot that had steep slopes on its outskirts and contained a historic structure with serious structural problems. It sought a variance for the construction of the townhouses because the lot was only zoned for single-family homes. At a hearing before the municipal zoning board of adjustment the developer’s proposal was opposed by a resident and a historical preservation association. After hearing testimony from the developer and the objectors, the board approved the developer’s variance request. The objectors sued, but the lower court upheld the board’s decision.

On appeal, the Appellate Division pointed out that decisions made by municipal boards are to receive considerable deference but that decisions to deny a variance receive greater deference than approvals of variance requests. It acknowledged that the developer’s proposal would have offered certain improvements such as the preservation of the historic structure and the provision of adequate light, air and open space, but found that the developer never established how the construction of townhouses would better meet those objectives than would the construction of single-family homes, the permitted use under the zoning ordinance. The Court also found that the developer never established how the property was better suited for the construction of townhouses than other properties in the municipality that were available and zoned for townhouses. Based on its findings and conclusions, it reversed the board’s approval of the developer’s variance request to construct townhouses on a property zoned only for single family homes.

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