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Gan Yaldenu Nursery School v. Teaneck Board of Adjustment

A-5772-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; USE VARIANCES — Use variances are appropriate only in exceptional circumstances and even an inherently beneficial use, such as for a nursery school, should not compel issuance of a variance that would intensify a prior non-conforming use.

A nursery school applied to a municipality for a variance to use a reconstructed garage for school activities. The nursery school already was using the property’s principal structure and its second floor apartment. Each were preexisting nonconforming uses and the municipality had previously issued a certificate of occupancy for the current uses. As constructed, the garage could not be used to hold cars. The nursery school admitted that it had used the roof deck for graduation ceremonies after the municipality ordered it not to do so. Neighbors objected to the proposed variance because they were concerned about noise, drainage, parking, increased traffic, and bonfires. The municipality’s board of adjustment denied the variance request. The nursery school appealed.

The lower court upheld the board’s decision, finding that the board’s findings of fact were supported by the record and ruling that the board’s decision was not arbitrary, capricious or unreasonable. It noted that there was sufficient evidence to conclude that expansion of the school’s play area would intensify the nonconforming use. The lower court also used its discretion to discredit the nursery school witness when evidence demonstrated that she had conducted activities in the past beyond those permitted. It further noted that the record supported a finding that the negative factors “far outweighed” the benefits conferred on the community by this school’s use of the garage. Moreover, the lower court found that the need for an expanded and relocated play area was caused by an increase in enrollment. The nursery school appealed.

The Appellate Division affirmed, holding that it would not substitute its judgment for that of the board of adjustment unless the board’s decision was arbitrary, capricious or unreasonable. In addition, courts are required to give even greater deference to variance denials than to approvals because variances subvert the zoning plan. It held that use variances are appropriate only in exceptional cases. According to the Court, even the inherently beneficial status of the property as a nursery school did not compel issuance of a variance that would intensify the nonconforming use on an already burdened site. This was found to be particularly true when the nursery school’s pre-application conduct created concerns about its credibility as it related to the school’s assurances that enrollment would remain stable. It also distinguished another case that was cited by the nursery school because, in the prior instance, the structural modification proposed by a school did not constitute a functional intensification of a non-conforming use.

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