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Cirino v. Brunetti

A-6756-97T1 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; VARIANCES; NON-CONFORMING USES—The fact that there are other nonconforming uses in the zone and other variances have been granted does not create a mandate in an applicant’s favor.

A developer filed a zoning board application, seeking to construct three townhouse units which were to be affixed to an existing single-family home. The property was located in a mixed-use zone where commercial industrial uses were permitted, but residential uses were not. Notices were sent to neighboring property owners, but one of those owners had moved and its change of address had not been noted on the municipality’s tax record. Neither it nor any other objector appeared at the hearing. The board granted the application, finding that several multi-family residences existed in the zone and that the proposed residential use was not “uncharacteristic in this location.” It also granted bulk variances and setback variances, and reduced the on-site parking requirements. A building permit was issued. After the applicant began construction of a foundation, the neighbor that had moved became aware of the construction and objected to the board and to the municipality’s mayor that the approvals had been granted. The mayor wrote to the board, urging it to “immediately rescind” its approval of the use and bulk variances. The neighbors then brought a court action and the Law Division ordered the applicant to stop all construction. It then entered a final judgment vacating the use and bulk variances and site plan approvals. The applicant was ordered to demolish the construction work, but a stay was granted with the warning that any further construction by the applicant would be “at his own risk.” During the pendency of the appeal, the applicant completed construction of the townhouses. In the appeal, the Court found “no evidence before the board from which it could have determined that [the applicant] had established the affirmative and negative criteria.” That ruling was without prejudice to the applicant’s filing of a new application with the board. At the second set of hearings, the applicant called forth certain experts, and there was testimony that the proposed structure would help the municipality fill its affordable housing requirement for low-to-moderate-income housing because the applicant planned to rent the units for a modest amount. The testimony also revealed, however, that there were no affordability restrictions on the property and that the developer had not entered into any governmental agreements. The board again approved the application. It found that “[t]here [was] a clearly demonstrated need” for the specific type of housing in the municipality and that the proposed use was “in keeping with the development of the surrounding residential properties” and that the “grant of the variances [would] not impair the zone plan.” During the pendency of a subsequent court action, the municipality’s governing council overturned the zoning board’s grant of the use variance. In doing so, it found that the proposed use was not “inherently beneficial.” While it acknowledged that housing for disadvantaged populations promotes public good, it emphasized that there was no indication that the proposed units would be “specifically restricted” to low income persons. The council concluded that the proposed use would have an adverse effect on the properties and that the “extraordinary number of bulk variances” would impair the intent of the zoning ordinance and be a substantial detriment to the surrounding properties. On appeal, the Court upheld the council’s decision. With respect to whether the project was “inherently beneficial,” the Court pointed out that “[w]hile the provision of decent, affordable housing to low-income families may be an inherently beneficial use, ..., we find substantial support in the record that the use proposed by [the developer] does not fall in that category.” The developer had not agreed to place any restrictions on the proposed project, limiting its availability to low-income families. In fact, its testimony indicated that it intended to charge whatever the rental market would bear. While the commercial nature of a proposed use, alone, is not dispositive of its status for zoning purposes, the Court agreed with the lower court’s conclusion that the developer’s proofs fell far short of establishing that the project would serve the general welfare in this particular community. Further, the Court held that the lower court could reasonably have found sufficient evidence that the proposed use was not suited to the particular location. Although the character of a neighborhood is always an important element and while nonconforming uses were present in the mixed use zone, the Court held that such factors are not very useful in determining whether a property owner has satisfied the “positive criteria.” In fact, the particular zoning ordinance had been reviewed a number of times by the municipality’s governing body, and its barring of residential structures in the mixed-use zone had been retained after such examinations. “The fact that other nonconforming uses are present in the zone and other variances have perhaps been granted does not create a mandate in [the developer’s] favor.”


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