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Estate of Giordano v. Planning Board of the Town of Kearny

A-5458-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; VARIANCES; SUBDIVISIONS — To obtain a variance allowing an undersized lot in a subdivision, the subdivision must actually benefit the community and represent a better zoning alternative for the property.

The owner of a residential lot applied to split a conforming single-family residential lot into one conforming single-family lot and into a two-family nonconforming lot. The zoning ordinance required two-family lots to be at least fifty feet wide, while the proposed corresponding lot would have a width of only forty-five feet. After a hearing, the planning board denied the owner’s application, finding that the proposed subdivision would not advance the municipality’s master plan. The board also concluded that the variance could not be granted without substantial detriment to the public good. The applicant sued to challenge the board’s determination, but the lower court affirmed the ruling.

The applicant appealed, arguing that the board was arbitrary, capricious, and unreasonable in its denial, but the Appellate Division affirmed. It found that the nonconforming lot, based on the record, would increase density of use without any benefit to the municipality and without advancing its master plan. The Court stated that a subdivision must actually benefit the community and represent a better zoning alternative for the property. It agreed with the lower court that no one but the land owner would benefit from approval. The Court found that the applicant had failed to establish that the benefit of deviating from the master plan would substantially outweigh any detriment, and that the variance would not substantially impair the intent and purpose of the zone plan and the New Jersey Municipal Land Use Law. It also found that when it determined that the board’s denial of the application was reasonable, the lower court took into account the board’s stated concern about density and downsizing which the municipality faced as a rapidly growing municipality.

Accordingly, the Appellate Division found the lower court’s conclusion to be supported by substantial credible evidence in the record, and that the board’s decision to deny the application was not arbitrary, capricious or unreasonable.

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