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Feins v. Borough of Beach Haven Land Use Board

A-5638-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Promotion of the “general welfare” is a purpose approved under New Jersey statutes and a grant of variances that provides a better land use alternative for the property at issue is a proper use of a land use board’s power when the positive impact on the general welfare substantially outweighs the detriments.

A municipal land use board granted a variance for on-site parking, allowing “zero” spaces instead of the required fifteen. The property was in a business district that lacked on-site parking. Other variances were issued respecting side-yard setbacks for a refrigeration unit, setbacks and buffers from adjacent residences, impervious lot coverage, and for a no loading area.

With the exception of the setback variance and buffer from residential use, the conditions requiring the variances, including the one outdoor seating area for customers, preexisted and were not exacerbated by the improvements for which the applicant sought approval. The land use board found that when the applicant acquired its property, the property had a structure in poor condition. It housed an unsuccessful market on the first floor and a residential apartment on the second. The applicant renovated the building and rejuvenated the business to the point where it because a popular location in the community. It added two sheds and additional outdoor seating. It prepared food in the upstairs apartment’s kitchen. These were mostly performed without permits or approvals. The applicant agreed to remove one of the sheds. This eliminated the need for several variances . It also reduced the proposed seating capacity.

The board determined that the expansion of outdoor seating was an enhancement to the general welfare of the community and to the quality of life for local residents. It further concluded that granting the application was consistent with the intent of the master plan in that it encouraged a vibrant business district. The board believed that the residential properties in the neighborhood were adequately shielded from the commercial use and that there was ample, nearby on-street parking to accommodate customers who did not walk or ride bicycles to the market. To address the remaining concerns expressed by neighbors, it imposed limitations on delivery and hours of operation.

A neighbor appealed, but the Appellate Division found that the appeal was without sufficient merit to warrant extensive discussion. The record provided sufficient credible evidence to support the land use board’s findings. The board was held to have acted properly in finding an outdoor seating variance unnecessary because outdoor seating was a preexisting condition; regardless, the board had addressed the question and explained that even if a variance for this seating were required, it would grant one. Finally, the Court rejected the neighbor’s claim that the applicant was operating a restaurant. Thus, a local law requiring that a restaurant have on-site parking was not dispositive as to the board’s classification.


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