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Fischer v. Eatontown Planning Board

A-4490-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—A land use board’s resolution should indicate whether a variance has been granted as a flexible or a hardship variance, and should specify the facts upon which the board relied in granting the variance.

A neighbor challenged a planning board resolution approving bulk variances that permitted conversion of two single family homes into a new house of worship and a residence for its religious leader. The lower court affirmed the planning board’s resolution and the neighbor appealed. A bulk variance may be either a hardship variance or a flexible variance. A hardship variance may be given when the property’s unique characteristics inhibit compliance and, without the variance, the property would have no utility. A flexible variance may be granted where, in connection with a specific piece of property, the purposes of the Municipal Land Use Law would be advanced by deviating from the zoning ordinance and the benefits of deviating from the zoning ordinance would substantially outweigh the detriment. The Appellate Division found that the lots did not have any unique characteristics to support a hardship variance. There may have been sufficient evidence to grant a flexible variance based on the benefits to the municipality substantially outweighing any detriment. However, neither the board’s resolution nor the lower court’s decision spelled out facts that would support the issuance of a flexible variance. The Court therefore remanded the matter back to the planning board and directed it to draft a supplemental resolution addressing whether it was granting a hardship or flexible variance, or both, and specifying the facts in the record upon which it relied in approving the variance.

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