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Greenblatt v. Allen

A-4219-09T2 and A-5373-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — In order to obtain a use variance and deviate from a municipality’s zoning ordinance, an applicant must satisfy both the positive and negative criteria and where an application is only based on the applicant’s own financial reasons and mere supposition as to public benefit, it will be denied.

A businessman operated businesses on property owned by his wife. The properties were located with a municipality’s B-1 “Business Zone.” Permitted uses within the B-1 zone included retail businesses, banks, professional offices, restaurants, and public buildings. One of the businesses he operated was a closed carpet warehouse business located at the rear of the property.

The businessman decided to convert the closed warehouse into a billiard hall. This was not a permitted use within the B-1 zone. He filed a variance application to use the rear warehouse for the billiard hall, but his application only provided for minor renovations to the site.

Without providing any expert testimony, the businessman testified that a billiard hall would keep the “riffraff” off the street by giving them a place to relax, play pool, and then go home. He claimed that the increased foot traffic would deter criminal activity. However, he had no plans to provide additional security to deal with the increased foot traffic at the site. A municipal police officer testified that billiard halls in other municipalities experienced public drinking, drug use, and loitering. Further, the officer noted that the building was located within an area known for robberies and a prior homicide, and was not a suitable atmosphere for an area where “juveniles were known to congregate.” In light of those concerns, the zoning board suggested that the businessman install new lighting or increase the size of the windows in the rear to allow the police to monitor activity within the billiard hall. The businessman refused to do so, and also refused to pave the rear parking lot as required by the zoning ordinance.

The zoning board denied the variance application, finding that there were security concerns as well as those related to increased traffic, with no discernable benefit to the public good. In its resolution memorializing the denial, the zoning board found that the businessman failed to meet the positive criteria by showing that the billiard hall promoted one or more purposes of the Municipal Land Use Law (MLUL). It noted that a billiard hall would unduly burden the police department and would not enhance the visual environment. In addition, there were no proofs that the property was particularly well suited for use as a billiard hall, particularly since the entrance would be from a dark parking lot hidden from the main road in an area already suffering from criminal activity. It also found that the variance could not be granted without substantial detriment to the public good due to increased noise, loitering, and an increased likelihood of criminal activity. The businessman appealed but the lower court affirmed the zoning board’s denial of the use variance. The lower court noted that the businessman was unwilling to deal with the zoning board’s safety and lighting concerns, but only intended to convert his empty warehouse into a billiard hall without dealing with legitimate concerns.

The businessman appealed, but the Appellate Division affirmed, noting that in order to obtain a use variance and deviate from the zoning ordinance, an applicant must satisfy both the positive and negative criteria. If the proposed use is inherently beneficial, such as a school or hospital, the positive criteria are presumed satisfied. Otherwise, the applicant must show that the proposed use promotes the general welfare because the property is particularly suited for that use. A property is particularly suited for that use if: (a) the use would fill a need in the general community; (b) there is no other viable location; or (c) that the property is particularly well-suited for that use. The applicant must also satisfy the negative criteria, by showing that the variance can be granted without substantial detriment to the public good and without substantially impairing the intent and purposes of the master plan and zoning ordinance.

In this case, the businessman’s application was based on his own financial reasons and his supposition that a billiard hall would keep the “riffraff” off the streets by giving them a place to hang out. The Court agreed that these reasons did not satisfy the positive criteria. The location, fronting a dark parking lot and not on main thoroughfare, along with the prevalence of illegal activity did not make the site particularly suitable for its proposed use as a billiard hall. Further, the businessman failed to demonstrate any undue hardship. To do so, he needed to show that the property could not be used for any other lawful use. But, there were twelve permitted uses within the B-1 zone and the businessman failed to show why he could not use the property for any one of the twelve permitted uses. The Court also found that the negative criteria were not met based the public safety and security concerns raised by the zoning board.

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