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Children’s Property, L.L.C. v. The Zoning Board of Adjustment of the Township of Woodbridge

A-6308-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES —Where a subdivision would intensify a prior non-conforming use, a use variance is required and the applications could be so intertwined that the subdivision application should not be considered separately from the use variance application.

A contract purchaser of six lots sought to renovate certain portions of its building by turning a barbershop into a third apartment and to reconfigure the lots into two lots. It applied to the zoning board for use variances for expansion of the prior nonconforming use, a minor subdivision to divide the existing lots into two lots, minor site plan approval, and a bulk variance. The board denied the application. After an appeal to the lower court, the matter was remanded to the board. By the time of the remand, the applicant had already renovated the building, added a new driveway, replaced the sidewalk, and started landscaping. The board again denied the application. The applicant again challenged the board’s ruling.

The lower court affirmed the board’s determination. The applicant appealed, claiming that the board’s decision was arbitrary, capricious, and unreasonable; and that the board and lower court should have considered the application for a minor subdivision separately from the use variance application.

The Appellate Division affirmed. In doing so it agreed with the zoning board that creating a third residential unit from the barber shop would make the nonconforming use more intense since the nonconforming use would be twenty-four hours a day, seven days a week while the barbershop had limited hours. The Court also found that the proposed subdivision would make the nonconforming use more intense as the building would be on a much smaller lot. It also agreed with the board that the applicant failed to satisfy both the positive and negative criteria. It noted that due to the legislative preference for land use planning by ordinance and not by variance, the granting of a use variance is considered the exception rather than the rule. It found the record supported the board’s finding that no special reasons had been shown in satisfaction of the positive criteria because the applicant did not demonstrate an inherently beneficial use, undue hardship or that the site was particularly well-suited for its proposed use. It also agreed with the board that the record was sufficient to support the finding that the proposal did not: (a) promote the general welfare; or (b) meet the negative criteria since the proposed project would result in an intensification of the nonconforming use. Finally, it agreed with both the board and the lower court when they refused to consider the subdivision application separately from the application for the use variances. It held that the use variance sought for the subdivision was required because the subdivision would have intensified the prior nonconforming use. Accordingly, it believed that to the applications were intertwined.

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