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DeSantis v. Planning Board of the Township of Montgomery

A-4875-96T5 (N.J. Super. App. Div. 1997) (Unpublished)

MUNICIPALITIES; ZONING—Had the Board of Health acted timely in granting septic approval for a particular lot, that parcel would have been “grandfathered in” under the prior zoning ordinance as had all of the other parcels in the project. Nonetheless, such a delay does not constitute an undue hardship, and the developer must qualify for a variance under the new zoning ordinance.

The Planning Board of the Township of Montgomery denied a variance sought by a landowner to subdivide his lot. At trial, the landowner claimed he had made application to the Township’s Board of Health for approval of a septic system for one of the lots before an ordinance was passed increasing the required size of lots, but that approval was not granted until after the ordinance was passed. Had the Board of Health responded in a timely manner, the landowner would have been able to subdivide the lots without obtaining a variance. The trial court reversed, holding that the landowner proved his was an exceptional situation and that it would be an undue hardship to him if the variance was denied.

The Appellate Division focused on whether the landowner sufficiently satisfied the “hardship” criteria in N.J.S.A. 40:55D-70(c)(1). This statute states that a variance should be granted where, by reason of an extraordinary and exceptional situation, uniquely affecting a property or its structures, strict application of any regulation would result in exceptional and undue hardship on the developer. The Court stated that the fact that t he developer could have had two lots if the Board of Health had been more responsive was not enough to support a claim of exceptional or undue hardship. Furthermore, the lot is neither undersized nor unusable in its current form. Citing N.J.S.A. 40:55D-70c(2), the Court went on to hold that no variance should be permitted where its benefits outweigh the detriment only for the owner. Such a variance must benefit the community by being a better zoning alternative or better serving the purposes of the existing zoning requirements. The Court also failed to find that this variance would advance the purposes of the Municipal Land Use Law. The Appellate Division remanded for reconsideration.


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