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Township of Fairfield v. Zoning Board of Adjustment of the Township of Fairfield

A-1645-02T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—In reviewing whether a zoning board has encroached on the zoning power of a municipality, a court can look at the Master Plan, but just because a particular use is not discussed in the Master Plan does not mean it is not permitted; it just might not have been considered.

An applicant successfully sought a number of variances and a site plan approval to enable it to construct a self-storage facility together with a small office and equipment storage building. It presented uncontroverted expert testimony and other material. The municipality offered no expert testimony. There was opposition from one neighbor. The zoning board approved the application with certain conditions. Thereafter, the municipality filed an action seeking to invalidate the variances and site plan approval. It argued that the “proposed use and implementing variances were inconsistent with [the municipality’s] Master Plan, ..., as well as the permitted uses in the governing zoning ordinance.” The lower court agreed, holding that the self-storage facility would “not only substantially alter the character of [the zone], it would complete destroy the intent and goal of the Master Plan… .”

A Master Plan “does not have the operative effect of a zoning ordinance. However, the land-use element is required to be [the basis of a zoning ordinance].” The New Jersey state legislature conferred the power to issue bulk/hardship and use variances to a municipality’s zoning board of adjustment. As a result, because the zoning board derives its power directly from the Legislature, it “operates independently from the governing body, and its powers ‘are not subject to abridgement, circumscription, extension or other modification’ by that governing body.” On the other hand, the board “may not operate in a manner that encroaches upon the zoning power of the municipality in which the board operates.”

That having been said, the Appellate Division recognized the difficulty in “determining when an arrogation of authority by a board of adjustment has occurred.” Although a zoning ordinance is aimed at uniformity, “[t]he variance power of the board of adjustment is, on the other hand, intended to accommodate individual situations which, ‘for a statutorily stated reason, require relief from the restrictions and regulations otherwise uniformly applicable to the district as a whole.’” Here, the Appellate Division disagreed with the lower court and found that the lower court improperly characterized the zoning question as being solely for retail commercial activities. It looked at the reports that were prepared at the time the Master Plan was adopted, and found a recommendation “for at least some degree of mixed use development.” It also rejected the lower court’s finding that because the Master Plan’s “Reexamination Report” did not include self-storage facilities, the Planning board, when issuing its “Reexamination Report,” specifically found that self-storage facilities were contrary to its planning goals for the zone in question. The Appellate Division found that it was “equally possible that the construction of the sort of self-storage facility proposed by [the applicant], a relatively recent phenomenon, simply wasn’t considered.”

The Appellate Division then examined the zoning board’s action and found sufficient support for the granting of the variances based on hardships that were related to the unique characteristics of the land.

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