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Caliber Builders, Inc. v. Zoning Board of Adjustment of the Borough of Paramus

A-3357-04T2 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; VARIANCES — Because the people who sit on local boards, have a peculiar knowledge of local conditions, a zoning board has wide latitude within which to exercise its discretion to grant or deny a variance request.

A commercial developer applied for a use variance to the zoning board of adjustment for the construction of a senior citizen congregate care facility. The facility was to house independent and semi-independent seniors. The property sat within a flood plain, and the construction plans called for an underground parking garage. The developer’s engineer confirmed that had the parking garage existed in the past, it would have flooded approximately three times in the prior fifty years. The engineer’s only proposed solution was to require the senior citizens to move their cars in the event of flooding. Similarly, the developer’s architect conceded that the underground garage was susceptible of flooding. Further, if approved, the facility would be built along a busy street near other senior housing.

At the board’s hearings, board members expressed concern over the impact additional senior citizens would have on traffic flow and congestion. Consequently, the board denied the variance application, finding: (i) not credible the developer’s testimony regarding the driving habits of its intended residents; (ii) that traffic problems would become burdensome; (iii) the facility was not needed as there were other senior housing facilities in the municipality; (iv) the governing body intended to exclude senior housing from the zone in which the proposed facility would be built; and (v) it is inappropriate to build a senior housing facility in an area susceptible to flooding. The applicant sued, and the lower court reversed the board’s denial of the use variance application.

Because the people who sit on local boards have a peculiar knowledge of local conditions, a zoning board has wide latitude within which to exercise its discretion to grant or deny a variance request. Decisions of a local board may be reversed only if they are arbitrary, capricious or unreasonable. In the presence of substantial evidence supporting a board’s decision, a reviewing court should not substitute its judgment for the that of the board. Although senior citizen housing is inherently beneficial, the variance application may be denied if the negative factors constitute a substantial detriment to the public good.

Based on the record, the Appellate Division found that the board weighed all factors and concluded that the detrimental effects substantially outweighed the positive and could not be mitigated. In light of the traffic and flooding problems, the board’s decision was found not to be arbitrary, capricious or unreasonable. The lower court judgment was reversed and the board’s denial of the variance application was reinstated. The developer argued that because the proposed facility would accommodate semi-independent senior citizens, the denial of the use variance violated the Federal Fair Housing Amendments Act. That Act precludes housing discrimination against handicapped persons. However, the developer presented no evidence that the residents of its facility would be handicapped. In fact, the proposed congregate care facility would have been available to independent seniors, presumably without any handicap. Because the developer failed to present evidence that its intended residents would be handicapped, the Court held that the lower court properly dismissed the developer’s claim.


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