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Bush v. The Planning Board of the Township of Middletown

A-2185-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES; HARDSHIPS — A hardship variance concerns only the physical conditions of a property and not personal hardship to the property owner; so where subdividing a property only serves the owner’s economic interest without providing a commensurate community benefit, it is inappropriate for a land use board to grant a variance.

A single story residential property was located in a residential zone. The zone required a minimum lot size of 10,000 square feet for interior lots and 12,500 square feet for corner lots. It also required a minimum front yard setback of 100 feet for interior lots and 110 feet for corner lots. A property owner applied to the planning board to subdivide its property into two lots in order to build a second single-family home. A subdivision would result in two undersized lots, each requiring variances. The owner called only one witness, a professional planner. The planner testified that the proposed subdivision was located in a transitional area where properties to the south tended to be on smaller lots with smaller frontages, and properties to the north tended to be larger. The planner also testified that the proposed subdivision would be well within the character of the neighborhood simply because there were other lots in the zone that did not meet minimum bulk requirements.

The planning board rejected the application, finding that there would be no benefit to granting variances; rather there would the detriments of less air, light, and open space from such a subdivision. Further, the board found there would no planning benefit to squeeze in another lot, and no benefit to creating more non-conforming lots in the zone. The board concluded that the positive criteria for a variance had not been satisfied and the negative criteria had not been overcome because two homes would be squeezed onto a lot where only one home was permitted. The owners appealed the board’s decision to the lower court.

The lower court reversed the board’s denial, finding that the subject lot’s oversize gave the impression of a vacant lot. It found the owner’s application satisfied the positive criteria by proving the need for the variance occasioned by the unique condition of the property that constituted the basis of a claim of hardship. The lower court further said the negative criteria was likewise overcome, in that the granting of variances would not create lots atypical from others in the neighborhood such as would impose a substantial detriment to the public good or impair the intent and purpose of the zone plan.

The board appealed and the Appellate Division reversed the lower court’s order, finding that the lower court had usurped its statutory role under the Municipal Land Use Law (MLUL) by failing to give due deference to the planning board’s discretionary authority and ultimately substituting its own judgment for that of the board. The Court first said the owner had not sought relief under the hardship provisions of the MLUL and therefore the lower court’s reliance on that provision was misplaced. Further, the owner’s desire to maximize the economic potential of a property subdivision did not constitute hardship under the law. A hardship variance concerns only the physical conditions of a property and not to any personal hardship of a property owner. The Court also said to satisfy the positive criteria as the basis for a variance requires a benefit to the community such that the proposed variance represents a better zoning alternative for the property. Here, the board concluded that subdividing the property only served the owner’s economic interests without providing a commensurate community benefit. As to the negative criteria, the Court said the board reasonably concluded that the subdivision would ultimately reduce the property’s air, light, and open space. In conclusion, the Court found the record supported the board’s determination that the application did not warrant deviating from the local zoning scheme. The board’s action was not otherwise unreasonable, arbitrary or capricious.


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