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Briar Rose Group, Inc. v. Planning Board of the Township of Denville

A-3052-10T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Since variances should be granted sparingly, courts give much greater deference to a variance denial than to a grant.

A contractor wanted to construct two single family houses and applied for a subdivision and associated variances, including a hardship variance. It needed a variance from a steep slope ordinance because the proposed lot would have disturbed the area by exceeding the maximum slope disturbance. The contractor’s proposal would also have violated an ordinance prohibiting the construction of any structure on a slope over 25%. The board denied the application, stating that the proposal would disturb steep and excessive slopes which was not permitted under the ordinance and because it failed to “(1) [protect against] excessive erosion or other unstable conditions; (2) [provide] the proper disposition of surface water runoff; (3) create appropriate storm drainage facilities; and (4) [take] adequate protective measures for downstream properties.” Furthermore, the application presented problems with soil erosion, drainage, and limited usable outdoor living space, and created impractical and un-maintainable slope areas.

The contractor sued, alleging the board’s decision was “arbitrary, capricious, and unreasonable.” The lower court found that the board’s decision was adequately supported by the evidence in the record and affirmed the board’s decision. Since variances should be granted sparingly, courts give much greater deference to a variance denial than to a grant. On further appeal, the Appellate Division agreed with the lower court and held that the board’s decision was neither arbitrary nor unreasonable because the contractor failed to sustain its burden of showing that its proposal met the positive and negative criteria.


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