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Chin v. Jersey City Board of Adjustment

A-6858-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; USE VARIANCES —To be granted a use variance, an applicant must show that the variance can be granted without substantial detriment to the public good, and will not substantially impair the intent and purpose of the master plan and zoning ordinance.

A two-family dwelling contained one apartment on the first floor and another apartment on the second floor, each of which were rented to tenants. The ground floor contained an unoccupied area with a room and an attached kitchenette and bath. The home was located in a residential zone which permitted one and two family homes, but prohibited three family dwellings. The zoning ordinance contained an on-site parking requirement of one space for each dwelling unit. The owner applied to the zoning board of adjustment for a use variance to convert the structure to a three-family dwelling. The board denied the application because the home did not meet the on-site parking and density requirements of the zoning ordinance. Six years later, the owner applied to the municipality’s division of zoning for permission to use the property as a three-family dwelling. This request was denied and the owner submitted a second use variance application. The board once again denied the application on the basis that the owner failed to meet its burden under N.J.S.A. 40:55D-70. The owner filed a complaint in lieu of prerogative writs challenging the board’s decision. After trial, the lower court dismissed the complaint. The owner appealed, asserting, among other things, that the decision of the board was arbitrary.

The Appellate Division affirmed the lower court’s ruling. It discussed the burden that the owner was required to meet for a use variance pursuant to N.J.S.A. 40:55D-70. This statute requires that an applicant must show that the use variance can be granted without substantial detriment to the public good, and will not substantially impair the intent and purpose of the master plan and zoning ordinance. An applicant satisfies this burden by satisfying both positive and negative criteria. The positive criteria requires an applicant to show “special reasons” for granting the variance. “Special reasons” have been defined as those that promote the purposes of zoning, in particular the general welfare of the community. When the proposed use does not itself promote special reasons, there must be a finding that the use is particularly suited to the location for which the variance is sought. To establish the negative criteria, an applicant must demonstrate that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. The Court found that the owner failed to meet these burdens for several reasons. For one, it failed to present any special reasons for granting the variance, and failed to show that the property was particularly suitable for the proposed use as compared to other properties in the neighborhood. In addition, the owner failed to meet the negative criteria by demonstrating that the use variance was not inconsistent with the master plan and applicable zoning ordinance. In trying to satisfy the negative criteria, the owner asserted that other homeowners on the street were using their properties as three-family dwellings in violation of the zoning ordinance. The owner also asserted that the board should not have considered the detrimental impact that the variance would have on the overcrowded parking conditions in the area. The Court found these arguments unpersuasive. As a result, the Court held that the board was justified in denying the application because the owner failed to meet its statutory burden.


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