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Green Meadows at Montville, L.L.C. v. Planning Board of the Township of Montville

329 N.J. Super. 12, 746 A.2d 1009 (App. Div. 2000)

ZONING; VARIANCES—A c(2) variance is not based upon hardship; instead it must be rooted in the purposes of zoning and planning itself.

A property owner owned a roughly right-angled triangular shaped tract that was zoned for one-family residences. It desired to subdivide the tract into eight lots. The municipality’s zoning ordinance required every lot to have a rectangular area of 5,000 square feet within the prescribed building lines. One proposed lot, triangular in shape, did not meet that qualification, although it was of sufficient size. The zoning ordinance also required every lot to have a depth of 150 feet. Two of the lots, measured at their common side-yard boundary, failed to meet that requirement. The municipality’s subdivision design standards required a sidewalk on at least one side of the road and limited the length of a dead end street to 1,000 feet. The property owner’s development plan did not contemplate a sidewalk for a particular street and the dead end of that street would be almost 2,000 feet from its start. In all other respects, the proposed subdivision fully conformed to the material requirements of the zoning and subdivision ordinances. If two of the nonconforming lots were combined to form a single lot, reducing the subdivision to seven lots, there would not be any need for a variance. Waivers, however, would still have been needed for the length of the proposed street and the lack of a sidewalk. The planning board denied the subdivision application, concluding that good cause had not been shown and that “a strict application of the applicable Township’s ordinances would not result in any peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the applicant and that, therefore, the variances and waivers should not be granted.” It further concluded that the purposes of the Municipal Land Use Law and the local ordinances would not be advanced by a deviation from the zoning requirements and that “the relief sought [could] not be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the zone plan and zoning ordinances… .” Eight reasons were given.

The Court disagreed with the planning board, holding that planning boards do not have the authority to deny an application for subdivision approval “based on considerations of the general welfare, the purposes of the Municipal Land Use Law, and sound planning.” Of the planning board’s eight stated reasons for denying the application, only two were based on the subdivision plan’s deviations from the requirements of specific provisions of municipal zoning ordinances or subdivision regulations. One was that a triangular building area, not a rectangular building area, would be required and that the length of a particular street would exceed the 1,000 foot limit for a dead-end street. The board did not reject the application based on the two lots having less than the 150 foot length required or the absence of a sidewalk. According to the Court, all of the other justifications which the planning board offered were “generalizations which amount to a statement of the Board’s opinion that the plan submitted does not conform to a satisfactory standard of land use.” The Appellate Division affirmed the lower court in holding that enforcing a requirement for a sidewalk along at least one side of every street was unreasonable because the existing portion of the street did not have a sidewalk and therefore, a sidewalk along that street within the subdivision would serve no useful purpose. Further, as the lower court noted, requiring construction of a sidewalk within a subdivision could not have been a ground for denying subdivision approval because the developer indicated that a sidewalk could or would be built if that were a condition for approval. The planning board had the authority to waive the 1,000 foot maximum length requirement. The lower court, with the Appellate Division’s approval, noted that “the total improvement that would result from the cul de-sac which the developer proposes to build, coupled with what he propose[s] to do to improve the existing proportions of [the street] ... that road’s going to be a lot better off for everybody after this subdivision, whether ... seven or eight lots ... go [ ] in.” Although a “c(2)” variance is not available when a hardship itself is created, a “c(2)” variance is not necessarily unavailable because the applicant has created a condition which requires the variance. This is because a “c(2)” variance is not based upon “hardship.” Instead, it must be rooted in the purposes of zoning and planning itself and must advance the purposes of the Municipal Land Use Law. Here, the lower court found that the two needed variances for the lots that did not meet the 150 foot requirement were “trivial” and could be granted, in the language of the statute, “without substantial detriment to the public good” and without “substantially impair[ing] the intent and the purpose of the zone plan and zoning ordinance.” As to the triangular shaped building area, its total area was more than required and the planned location of the house on it was a substantial distance from the neighboring house. Testimony was introduced that a house comparable to other houses in the development could readily be built on the lot, and there was no contrary testimony. A dimensional variance could be granted when “the benefits of the deviation would substantially outweigh any detriment.” Here, according to the Court, there was no detriment to be overcome. The board’s objection was to the “density” of the proposed land utilization. However, the applicable zoning ordinance dealt with density by prescribing lot sizes, and all of the proposed lots exceeded the applicable minimums. A “density” of construction consistent with the minimum lot size requirement of the zoning ordinance is not a detriment. Further, this particular area of the community was one in which the municipality sought to encourage a more intense use of the land. In fact, it was discouraging large lot zoning in this area of the municipality. Without a variance grant, the lot in question would have had 325 percent of the average lot size in the area. Consequently, the Court believed that, on the record, the benefits of zoning (more harmonious lot sizes) could be seen as substantially outweighing any detriment.


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