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Decosimo v. City of Elizabeth Board of Adjustment

A-486-03T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—A decision as to whether a variance application is to be denied on the grounds of res judicata is to be made by the land use board and not by a court.

Owners of an auto lubrication business appealed a decision by their city’s board of adjustment granting a use variance to a neighboring construction company. The use variance permitted the construction company to build residential units on the property adjoining the auto lubrication business. The objectors contended that the use variance should not have been granted by the board because the property on which the residential units were to be built on was located in a commercial zone. In addition, the owners contended that the board was precluded from granting the use variance because it had denied the same application two years earlier.

The lower court ruled that the use variance was properly granted because the property was located on the edge of a residential zone and that the grant of the application was not inconsistent with the purpose of the zoning ordinance. It also held that the board of adjustment was not precluded from granting the use variance just because it denied the variance two years earlier. The objectors appealed the lower court’s ruling.

The Appellate Division affirmed the lower court’s determination upholding the board’s grant of the use variance. It examined the effect, it any, that a board of adjustment’s prior decisions have on present applications before the board. The Court found that the question of whether a variance application should be rejected on grounds of res judicata is a determination for a board of adjustment to make and not a court. The Court held that a board has the discretion to consider a subsequent variance application if significant changes have been made to the project or if the circumstances of the property have changed. In this case, the Court ruled that the construction company demonstrated significant changes to the project such as a decrease in residential units and an increase in parking and therefore the board had grounds for granting the variance. The Court further ruled that a board’s determination may not be set aside by a court unless it is arbitrary, capricious or unreasonable. It held that board decisions are presumed valid if they are supported by substantial evidence in the record and reflect a correct application of land use law and should not be disturbed absent a clear abuse of discretion.

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