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Haggerty v. Board of Adjustment of the Borough of Nutley

A-2725-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—A change to a house creating handicapped accessible bedrooms that is not visible from the outside and which does not impact traffic or otherwise burden the neighborhood is adjudged to have satisfied both the negative and positive criteria for a zoning variance.

A local zoning board granted a homeowner’s application for a permit to convert a two-family residence into a four-family residence. Two one-bedroom apartments were to be handicap accessible in conformance with the Americans with Disabilities Act (ADA). Opposing neighbors contested the board’s decision because the property was located in a R-2 District and did not comply with the bulk requirements for multiple dwellings. The applicant argued that the conversion would have posed no detriment to the community because it would not have been visible from the exterior of the home and the additional units would not have resulted in traffic or in a substantial number of additional children. Furthermore, the applicant pointed out that the municipality was in need of such handicap accessible dwellings. The Law Division affirmed the board’s decision.

On appeal, the Appellate Division affirmed the lower court’s decision, holding that the board rendered a clear decision in compliance with N.J.S.A. 40:55D-70(d). That statute requires an applicant to satisfy both positive and negative criteria. Under the positive criteria, the applicant must establish “special reasons” for the grant of the variance. To satisfy the negative criteria, it must be proved that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the municipality’s zone plan and zoning ordinance. The board must then balance these factors and determine whether the grant of the variance would cause a substantial detriment to the public good.

The Appellate Division noted that the positive criteria referred to by the board were those demonstrating that the proposed use promoted the public health, safety, morals, and general welfare and encouraged the provision of senior citizen housing. The board also recited the need for handicap accessible housing and noted that the proposal was geared for such accessibility. In terms of the negative criteria, the board noted that the conversion would not have imposed a burden since the appearance of the building would not have changed. Furthermore, there would not have been a substantial detriment to the public in terms of traffic since the traffic coming from a total of two three-bedroom apartments would not have differed all that greatly from the traffic resulting from the new five-bedroom project. The number of bedrooms was essentially the same. In balancing these factors, the board concluded that the change could have occurred without imposing a burden on the public. For these reasons, the Appellate Division affirmed the lower court’s decision which had affirmed the board’s decision to grant the owner’s application.

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