Howard v. Planning Board of the Borough of Oceanport

A-4953-98T5 (N.J. Super. App. Div. 2000) (Unpublished)
  • Opinion Date: April 20, 2000

ZONING; USE VARIANCES—When a planning board has improperly granted what a court finds to be a use variance, it is not proper for the court to remand the matter to the zoning board unless the applicant had applied to the zoning board.

A marina obtained approval of a minor site plan from the municipal planning board for a small in-ground swimming pool to be built on the marina property. Neighbors brought an action in lieu of prerogative writ to challenge the approval and the board’s conclusion that “construction of a fifteen foot by thirty foot in-ground pool is of such a nature that the board does not consider this an expansion of non-conforming use… .” The Appellate Division and the lower court each agreed that the proposed swimming pool, in fact, would be an expansion of the prior non-conforming use of the property. Because only a zoning board has original jurisdiction to permit expansion of a prior non-conforming use upon application for a use variance, the lower court remanded the matter to the municipality’s zoning board. The Appellate Division modified that decision because, although it agreed that a use variance from the zoning board was necessary, it found no basis for a remand to a municipal board to which the property owner had never submitted a variance application and which therefore had never considered the matter. Therefore, the Appellate Division remanded the matter to the Law Division to issue an order reversing the planning board’s resolution, without prejudice to the marina’s right to seek a use variance before the zoning board.