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Funeral Home Management, Inc. v. Basralian

319 N.J. Super. 200, 725 A.2d 319 N.J. Super. 200, 725 A.2d 64 (App. Div. 1999)

ZONING; SPECIAL REASONS—The “special reasons” criteria are not satisfied just because a property may be particularly suited for a specific site for which the use is not zoned.

A property owner sought a variance to operate a funeral home on a z-shaped property located partially in an office use zone and partially in a residential zone. The portion that was zoned for residential use was effectively landlocked as the only access to it was through the portion zoned for business use. At the board’s hearing, an expert testified for the property owner, expressing that the zoning of the property was unusual in relationship to the development of the surrounding properties. The expert posited that the area of the property zoned for a business use was relatively small in comparison to the surrounding properties in the business zone and, thus, an owner of the subject property would be at a competitive disadvantage in terms of the size of the permitted office that could be constructed. The expert further testified that the property’s size, configuration, and location made it well suited for a transitional type use, which he thought the funeral home to be. The application was opposed by neighboring property owners and by another funeral home operator in the municipality. The board granted the use variance, concluding that although the proposed use was not an inherently beneficial use per se, special reasons nonetheless existed, i.e. the use was peculiarly suited for the property. It considered the irregular shape of the property and the fact that it was in two different zones. Despite the fact that a portion of the property was in a residential zone, the board thought the site was not suited for residential use. On the other hand, although an office building would be too intensive a use, a funeral home would serve as a “buffer” or transition use and be more aesthetically pleasing. The Appellate Division did not find this an easy case to resolve. On the one hand, the Court found the applicant’s claim of “hardship” to be questionable. Just because a property may be particularly suitable for a proposed use because that use fits well with the surrounding area, such a situation does not equate to “special reasons.” “Peculiar suitability” special reasons exist where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape. In this particular case, the board made no finding that a funeral home use was not available in other locations in the area or, indeed, that there was a community need for such a use. Consequently, because this was not presented as a beneficial use, the board was required to determine whether the applicant had satisfied the enhanced proof requirement relating to the impact on the zoning determination of a governing body. Because of its failure to do so, the board was found to have acted arbitrarily, capriciously, and unreasonably. Therefore its grant of the requested variance was reversed.


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