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Citizens for Historic Preservation, Inc. v. Sheehan

A-5106-03T2 and A-5845-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; HISTORIC PRESERVATION — Under the New Jersey Municipal Land Use Law, a zoning board may not grant a hardship exemption from a historic preservation ordinance unless the ordinance specifically provides for such an exemption.

A woman and her father lived in a home that was formerly a life saving station. The station was built in the late 1800’s and was classified by the municipality as a historical site. The woman’s father passed away and the woman did not earn enough income to live in the home. The property was her only asset and was a potential source of income if she sold the property. The woman decided to place the property on the market. Soon thereafter, she learned that the property was worth much more as an empty lot, without the presence of the home. She applied to the municipality’s historic preservation commission for a permit to demolish the home’s built-in porch or in the alternative, to demolish the entire home. The commission denied the permit and the woman appealed to the municipality’s zoning board of adjustment. The zoning board reversed the commission’s denial of the permit based on the personal economic hardship that the home caused the woman. After receiving the permit, the woman sold the property to a man and a development company. A corporation organized for preserving historical sites then appealed the zoning board’s decision. The lower court upheld the board’s decision, holding that the record contained sufficient evidence to support a finding of hardship. In reaching its decision, it took note of the woman’s poor financial situation and the great hardship that the home created. The corporation appealed the lower court’s ruling.

The Appellate Division reversed the lower court’s ruling. It held that the zoning board and the lower court should not have taken into account the woman’s economic hardship in reaching their decisions. It found that the consideration of hardship was beyond the zoning board’s powers. It held that zoning boards must exercise their zoning powers under the New Jersey Municipal Land Use Law through their local ordinances. In this case, the applicable ordinance was the municipality’s historic preservation ordinance. It provided that economic hardship may only be considered a factor after the original demolition permit application has been denied by the zoning board, and the applicant has subsequently applied for a permit as a matter of right. Therefore, the board’s consideration of the woman’s economic hardship was premature because it had not yet denied the demolition permit. The Court found the board’s actions in considering economic hardship to be ultra vires because such a consideration was not authorized by the historic preservation ordinance. As a result, the Court reversed the lower court’s ruling.

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