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Butler v. Jersey City Zoning Board of Adjustment

A-0652-07T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; DESIGN STANDARDS — A court can rule as to whether a land use board has the right to consider or reject design standards and if a board’s decision is not arbitrary, capricious or unreasonable and is supported by substantial evidence in the record, it will be upheld.

A developer submitted a site plan and a building permit application to construct a two-family home. No variances were required. A building permit was issued. After the developer began construction, a neighborhood coalition sent a letter asserting that the house was going to be closer to the street than other adjoining homes and would include design features not compatible with the neighborhood’s older homes. The developer stopped construction, and agreed to submit a new application to address its neighbors’ concerns. To move the house back required setback variances for both the front and back yards. At a special zoning board hearing, the developer’s expert testified to the positive attributes of moving the house back. Members of the public did not object to the variances. Instead, they asked the board to review the project for compliance with design standards contained in the zoning ordinance. In response, the municipal planner responded that the zoning officer was not required to consider residential design standards, but that the developer had voluntarily agreed to certain design changes. The board granted the variances without requiring any further design changes. The coalition filed a complaint, challenging the board’s grant. The lower court dismissed the neighbor’s argument that the board’s decision was arbitrary and capricious, finding that the variances benefitted the community by providing for a house that was compatible with other homes on the block. It ruled that the board had to right to consider or reject design standards. The coalition appealed.

The Appellate Division concluded that the board’s grant of the variances was not arbitrary, capricious or unreasonable and that it was supported by substantial evidence in the record. It agreed with the developer’s expert’s testimony that the grant of the variances would have a positive effect on the neighborhood and would satisfy the concern that the front setback would comply with the predominant setback of adjacent properties. The Court also observed that the board had heard and considered the public’s objections to the home’s design, and that the board’s resolution recited the developer’s willingness to implement some changes.

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