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Garvin v. Planning Board of the Township of Middletown

A-4793-05T1 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; VARIANCES — Where a land use board does not apply the law to the facts in the matter, a lower court may reverse the land use board’s decision and grant a requested variance.

A contract purchaser of a large, irregularly shaped lot, which had one single family home built on it, sought approval for a three-lot subdivision. The proposed subdivision would have placed the three lots one behind the other, with a paved easement to facilitate pedestrian and automobile traffic to and from the street. The irregular subdivision was proposed because the lot only had enough frontage along the road for a single lot. Under law, a structure is required to border along a street to which it has access. The purchaser sought a variance under provisions of that law that allowed exceptions if enforcing the required street frontage requirement would cause a hardship, and if there were provisions for adequate access to the lots by firefighters, ambulances, and other emergency vehicles. The purchaser’s proposed subdivision received approval from the municipality’s fire department for the proposed access road.

An expert witness for the purchaser testified at a hearing as to the condition of the property and such relevant issues as the layout of the property, its drainage, its building coverage, and the presence of nearby properties with similar private access roads. He also testified that the proposed subdivision would not have had a detrimental effect and that it would have advanced the purposes of state laws governing municipal land use by providing open space by way of large lot sizes, by promoting appropriate population density, and by providing the visual appeal of a country lane.

The municipality’s planning board rejected the variance application. It found that the property was not encumbered by its irregular shape because it was already put to good use with the existing house. The board also found that the proposal was atypical, out of character with the neighborhood, and that the access driveway would have burdened an adjacent property and be detrimental to the surrounding neighborhood’s character. The board further found that the benefits of granting the variance would not outweigh the detriments to the intent of the municipality’s master plan and the public good.

On appeal from the board’s decision, the lower court reversed the board’s denial of a variance. It found the property to be highly irregular in shape and also noted the fire department’s approval of the subdivision. The lower court rejected the board’s determination that the proposal was atypical and out of character with the area as being contrary to the facts before the board. It noted that there were similar driveways in the immediate area and that there was no indication that they had any detrimental effect on the surrounding neighborhood. The lower court also disagreed with the board that the subdivision proposal was contrary to the municipality’s master plan and found that approval would have advanced the purposes of state law regulating municipal land use. The lower court concluded that the board did not apply the law to the facts of the matter. On an appeal brought by the board, the Court rejected all of the board’s arguments and affirmed the lower court’s decision.


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