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Cappelluti v. City of Union City Planning Board

A-3075-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Where a proposed development would advance the purposes of the Municipal Land Use Law by affording an opportunity for multiple families to obtain attractive and newly-constructed residential housing in an area that had not been well developed and would otherwise be occupied by an abandoned house, it is reasonable for a land use board to find that any possible detriment would be outweighed by the substantial benefits to be gained by the municipality from the project.

A developer sought minor subdivision approval and variances to construct two three-story, three-family houses. The application was opposed by a neighbor who, if construction were permitted, would have lost all or a substantial portion of a skyline view that it previously enjoyed from the rear of the neighbor’s house. A planning board resolution stated that the subdivision application was abandoned when it was determined that all lots listed in the application were already separately existing tax lots.

Following initial approval of variances by the board, the neighbor brought an action in lieu of prerogative writs. It was dismissed by the lower court. In the resolution appeal, the Appellate Division reversed the board, finding that a board member had voted on the matter after having recused himself. Additionally, the Court held that the resolution was inadequate, because its factual findings and legal conclusions were insufficiently specific, and that the resolution failed to specify what variances were being granted. Further, the Court found that the resolution failed to mention either the positive or negative statutory criteria, although the witnesses at hearings in the matter had testified to those criteria.

On remand, the board held further hearings and ultimately approved the variances. However, when the resolution was again challenged, the lower court found the resolution to be deficient under the standards the Appellate Division had previously articulated. The lower court thus remanded the matter to the board with instructions to comply with the Appellate Division’s opinion and to produce more specific findings. Following further consideration, the board issued a more detailed resolution, still granting the requested variances. The lower court, in a written opinion, then affirmed the board’s decision.

On appeal, the neighbor again argued that the board’s decision was not supported by the evidence. This time, the Appellate Division found that the municipality had not acted arbitrarily, capriciously or unreasonably in granting the variances. Unlike with the board’s prior resolutions, which were terse and conclusory leaving the reasons for the approval unstated, the current resolution made sixteen explicit findings of fact, each supported by testimony or other evidence in the record, and those factual findings were logically connected to, and supported by the municipality’s eight specific conclusions of law.

The Court recounted that a variance applicant must show that its application relates to a specific piece of property; that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; that the variance could be granted without substantial detriment to the public good; that the benefits of the deviation would substantially outweigh any detriment; and that the variance would not substantially impair the intent and purpose of the zone plan and zoning ordinance.

Here, the developer, through witnesses and experts, demonstrated that its application related to specific undersized lots and that the proposed development would advance the purposes of the Municipal Land Use Law by affording an opportunity for multiple families to obtain attractive and newly-constructed residential housing in an area that had not been well developed, having been partially vacant and otherwise occupied by an abandoned house. The developer also established that the proposed housing was likely to be owner-occupied, that it conformed to prevailing residential standards, and that it would be located in a particularly scenic area, thereby benefitting many families and revitalizing the community.

The planning board had found that there would be some detriment to the public good arising from the proximity of the proposed structure to the rear lot line of the neighbor’s property but that the negative impact would be lessened by the manner in which the windows were to be placed in the building and by the building’s height, which was less than that of adjoining buildings. Further, it had found that any detriment was outweighed by the substantial benefits to be gained by the municipality from the project. In affirming, the Court held there was substantial evidence in the record that the variance standards had been met.


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