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Gentile v. Township of Lyndhurst

A-5156-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — Where a governing body overrules a land use board on a variance request, the presumption of validity given to the governing body overrides the substantial deference that courts are required to give to land use boards.

A property owner, who had been using the first floor of his building as a dry cleaning business for twenty-five years, applied for a variance for the construction of five one-bedroom apartments above the business. The municipal zoning code specifically prohibited dry cleaning establishments in the business zone where the building was located. After a hearing on the matter, the municipality’s board of adjustment approved the application. A resolution passed by the board set forth its reasons for the approval. An objector went to the municipality’s governing body and reargued his opposition to the granting of the variance. The governing body and the mayor reversed the board’s decision, finding that the property owner had not established the positive criteria by showing why the property was particularly suited for the requested use.

The property owner sued the municipality, seeking reinstatement of the board’s decision. While the complaint was pending, the municipality deleted those portions of its zoning ordinance that allowed for the construction of dwelling units above any first-floor business establishment. After hearing the matter, the lower court dismissed the property owner’s claims. The lower court looked to the amended zoning ordinance and noted that under the new rules, the property owner would have needed to obtain a variance for the restricted use of building dwellings above a retail establishment.

On appeal, the Appellate Division noted that even though a land use board is to receive substantial deference for its decisions, if a governing body also rules on the variance request, the presumption of validity is given to the governing body. It then held that the lower court properly decided the matter according to the ordinance in effect at the time that it rendered its decision. The proceedings before the board of adjustment provided sufficient evidence to support the governing council’s findings that the positive criteria, necessary for the granting of the variance, had not been met. Based on the Court’s conclusions, the lower court’s decision to uphold the commission’s denial of the property owner’s variance request was affirmed.

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