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Comly v. Zoning Board of Adjustment of the Township of West Amwell

A-2935-04T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; VARIANCES; CONDITIONAL USE—Operating a business within an accessory building at one’s residence may be an indication that the business does not qualify for a “home business” conditional use variance.

A residential home owner applied to the zoning board for a use variance to engage in the sale, manufacture, distribution, servicing, and repair of high-end shotguns from a proposed new structure (not the residential home) on the residential property. The residential property was situated in the R-2 zone, a low-density residential zone permitting single-family dwellings on a minimum of two acres. This R-2 zone allows “home occupations” as a conditional use. The zoning board granted the use variance. However, in reading the variance application and the board’s approval thereof, neither the lower court nor the Appellate Division could determine if the grant was for a use variance under N.J.S.A. 40:55D-70(d)(1) or for a conditional use variance under N.J.S.A. 40:55D-70(d)(3). The lower court and the Appellate Division analyzed the case under the standards for both variances. The lower court reversed the grant of the variance and the Appellate Division affirmed.

While a zoning board’s decisions are presumptively valid, a zoning board decision may be reversed if a reviewing court finds the decision to be arbitrary, capricious or unreasonable in light of the record. Because variances tend to impair sound zoning planning, and because the courts have found a legislative intent in the Municipal Land Use Law (MLUL) to favor comprehensive planning by zoning rather than by variance, greater deference is afforded a zoning board’s denial of a variance request compared to the review of a zoning board’s grant of a variance.

In either an application for a use variance or a conditional use variance it is the burden of the applicant to establish that the variance “can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.” Satisfaction of these obligations is commonly referred to as satisfying the positive and negative criteria necessary to obtain a use variance.

In viewing the present application as an application for a use variance, satisfying the positive criteria required a showing by the applicant that the proposed use promoted the general welfare and was particularly suited for the property in question. In applications concerning commercial uses, if the proposed use is particularly suited for the subject property, then the commercial use is deemed to promote the general welfare and thus satisfies the positive criteria. Where the proposed use is not inherently beneficial, to demonstrate that the subject property is particularly suited for the proposed use the applicant must show the need for the use of that particular piece of property. To demonstrate that a piece of property is particularly suited for a proposed use, the applicant must prove that the use is one that would fill a need in the community; there is no other viable location; and the property has geographic attributes making it well fitted for the proposed use.

To satisfy the negative criteria of a use variance application, the applicant must prove by an enhanced quality of proof that the variance sought is not inconsistent with the intent and purpose of the municipal master zoning plan and ordinance. The zoning board must make findings reconciling the proposed use with the zoning ordinance’s omission of the use as a permitted use in the zone. The zoning board should make findings of fact sufficient enough to satisfy a reviewing court that the board analyzed the master plan and ordinance and determined that prohibition of the use as expressed in the ordinance or the master plan is not incompatible with the grant of the variance.

In an application for a conditional use variance, the use itself is not prohibited. In such an application, the applicant is seeking relief from a condition imposed upon such use. To satisfy the positive criteria the proof must be sufficient to satisfy the board of adjustment that the site proposed for the conditional use is an appropriate site for the conditional use even in light of a deviation from one or more of the conditions imposed by the ordinance. The application and the approving resolution (if any) must pay special attention to the specific deviation from the ordinance’s conditions. To grant a conditional use variance request, the board of adjustment must be satisfied that the deviation from the conditions will not affect the suitability of the subject property for the conditional use. The subject property must accommodate the problems associated with the use even though the proposal does not comply with the ordinance’s conditions. The board of adjustment must evaluate the impact of the proposed conditional use variance on the adjacent properties and find that the conditional use, as proposed, with the deviation from the statutory conditions will not cause such damage to the character of the neighborhood so as to constitute substantial detriment to the public good.

The board of adjustment must also be satisfied that the conditional use will satisfy the negative criteria. To satisfy the negative criteria, the applicant must prove to the board of adjustment that the grant of the variance is reconcilable with the municipality’s legislative determination that the condition should be imposed on all conditional uses in that particular zone.

In granting this particular application, the board’s resolution focused on the deviations from the standards otherwise set in the ordinance. The Appellate Division found that the wording of the resolution seemed to grant the variance as a conditional use variance for a “home occupation.” The municipal ordinance defined “home occupation” as a business: (1) located entirely within a residential building; (2) which purpose is accessory, incidental, and secondary to the use of the building as a residential dwelling; and (3) which does not change the essential character or appearance of the residential home. The ordinance in question imposed eight separate conditions.

The lower court noted that although the MLUL does not define “home occupation;” courts have indicated that a high intensity use may disqualify the activity as a permitted home occupation. Further, the lower court ruled that the home occupation must be incidental and subordinate to the principal use of the property as a residence, and the use must bear a reasonable relationship to the primary use. The lower court found that the application stated the shotgun business would be operated completely from an accessory building and not from the principal residence. Based on this finding, the lower court concluded that the proposed business failed to meet the definition of a “home occupation” and thus could not qualify as a conditional use. The applicant testified that he wished to enhance his business professionalism by housing the business in a separate building. To the lower court, this testimony underscored the risk that the proposed business was not incidental to the primary purpose of a principal residence, but rather a separate enterprise completely different in character from a residential neighborhood.

According to the lower court, the restrictive definition of “home occupation” plus the inclusion of the ordinance’s eight separate conditions highlighted a legislative intent to prevent dual principal uses of the property as a principal residence and as a separate commercial enterprise. Further, even assuming that the departure from the express terms of the definition of a “home occupation” would not have been fatal to the conditional use variance application, in the present case the applicant would require variances from at least five of the eight enumerated conditions. According to the lower court, deviation from a majority of the conditions deprives the proposed use of any basis for defining the use as a “home occupation.”

Finding that the proposed business: (a) was four times in size than that permitted by the ordinance; (b) was to be conducted entirely apart from the primary residential structure; (c) would provide for in-person sales on the premises; (d) would employ at least one non-resident; and (e) would require daily delivery and pick up from several carriers, the lower court concluded that the proposed use would be substantially more expansive and intense than contemplated by the ordinance’s restrictions. The lower court continued by finding that the zoning board’s resolution approving the variance application did not show adequate consideration of the aggregate effect of all of the deviations from the ordinance on the residential character of the surrounding neighborhood.

Nor did the resolution adequately address the negative criteria. The lower court found no discussion as to whether the grant of the variance substantially impaired the intent and the purpose of the zone plan and zoning ordinance. It found the resolution to be inadequate in that it merely stated that home occupations were permitted as conditional uses without discussing if the requested deviations from the standards for home occupations were compatible with the municipal zoning ordinance. The lower court thus concluded that a conditional use variance was neither factually nor legally justified and reversed the grant of the variance by the Zoning Board of Adjustment.

In reviewing the application under the standards for a use variance, the lower court found a lack of evidence showing that the applicant’s property was particularly suited for the operation of a shotgun sales and servicing business. The fact that an expert testified that the site was particularly suited for a home occupation because it contained a home was not helpful to the analysis. The lower court failed to find any evidence in the record indicating that the zoning board found special reasons sufficient to justify the grant of the variance as a use variance.

As to the negative criteria under the standard for use variance applications, the lower court accepted, as fact, the zoning board’s conclusory statement that the variances could be granted without substantial detriment to the public good since any offsite effects would be minimal. However, the lower court noted that the zoning board failed to consider whether the variance would substantially impair the intent and purpose of the zone plan and ordinance. It found no evidence that the zoning board considered the zoning plan and ordinance and concluded that the prohibition on the use was not incompatible with a grant of the variance. Thus, the lower court concluded that the proposed use was contrary to the legislative intent of the governing body and reversed the zoning board’s approval of the variance request.

For the reasons expressed by the lower court, the Appellate Division affirmed.


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