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Ireland v. Zoning Board of the Township of Galloway

A-3619-00T2 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; VARIANCES—The fact that a use may satisfy the bulk requirements of a zone does not demonstrate that the use is peculiarly fitted to that particular location.

The owner of a parcel located in a neighborhood residential zone applied for a use variance to construct a miniature golf course and delicatessen. Although the zoning ordinance permitted certain neighborhood commercial uses such as gas stations and eating and drinking establishments for lots, such as the applicant’s, that fronted on the highway, it did not permit miniature golf courses. At the planning board meeting, the owner’s expert testified that the property was bordered on two sides by a golf course, that the property was large enough to provide an adequate buffer between it and neighboring residential uses, and that it had sufficient frontage along the highway to offer safe ingress and egress. The expert also opined that the miniature golf course would have a less adverse impact on the area than other permitted commercial uses because it would be closed for six months of the year and would therefore generate less traffic. The adjacent golf course’s expert opposed the use variance on the basis that a miniature golf course would be a permitted use in other zoning districts within the municipality and that granting a use variance for this property would be inconsistent with the master plan. A third expert hired by another miniature golf course developer confirmed that there were many other areas within the municipality that would permit construction of the miniature golf course. Finally, the resident living closest to the property testified that a miniature golf course would be a safety hazard for pedestrians because there were no sidewalks or curbs in the area. At the conclusion of the hearing, the municipality approved the owner’s application. The adjacent golf course and the resident sued the municipality and the owner. After reviewing the record below, the lower court concluded that the owner’s expert had provided adequate factual testimony to support the finding that both the positive and negative criteria had been satisfied. The adjacent golf course and the resident appealed. The Appellate Division began by explaining that “a board of adjustment is authorized to grant a use variance only in particular cases for special reasons. This is sometimes referred to as the positive criterion. In addition, an applicant for a variance must show that the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. These are sometimes referred to as the negative criterion.” It explained further that “variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning.” Therefore, “to satisfy the positive criterion of ‘special reasons,’ a board must find that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.” Further, to satisfy the negative criterion, “our Supreme Court requires an enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.” On this backdrop, the Appellate Division concluded that “the Board’s resolution approving the [owner’s] application for a use variance does not contain the findings of fact required to justify such relief.” In particular, the Appellate Division recognized that “the resolution does not include any finding that a miniature golf course is a use which is peculiarly fitted to the property.” Further, it recognized that “the fact that a use may satisfy the bulk requirements of a zone does not demonstrate that the use is peculiarly fitted to that particular location.” Finally, the Appellate Division found nothing in the record that supported a finding that the owner’s proposed development of the property satisfied the negative criterion. On these bases, the Appellate Division reversed the lower court’s judgment approving the use variance.

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