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Brinker v. Brigantine City Planning Board

A-3498-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; VARIANCES—A court should not substitute its judgment for that of a land use board where the municipality’s requirements are uniformly applicable to all similar projects and the applicant failed to show that its site could accommodate the non-conformity.

An applicant claimed that the municipal planning board arbitrarily denied him variances to build “a duplex residence.” The lower court reversed the board’s decision holding that “‘[t]he conclusion that the variances should not be granted because the lot was undersized, without evaluating the true impact on the community, the Zone Plan, and Ordinance, was arbitrary, capricious and unreasonable.’” The board appealed.

The Appellate Division found that even though the applicant’s “new duplex would be more attractive than the” duplex already on the property, the applicant was obligated to show that his site would “accommodate the problems associated with the use even though the proposal [did] not comply with the conditions the [zoning] ordinance established to address the problems” and the applicant failed meet that obligation. The Court also found that even though the applicant’s property bordered “a zone allowing higher density use,” that fact did not constitute “a ‘special reason’ for grant” of the variance. Further, the Court found that the zoning plan and ordinance’s intent and purpose were frustrated by allowing reconstruction of a non-conforming duplex whose lot size did not conform to the municipality’s requirements that were “imposed on all duplexes” in the area. Consequently, the Court reversed and reinstated the board’s decision.

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