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Juliano v. Southampton Township Planning Board

A-1102-03T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—Even though a court may agree with a variance applicant that the relief sought does no damage to a zoning ordinance, it will not substitute its judgment for that of a land use board unless the board’s decision is arbitrary or capricious.

A property owner owned a lot governed by a local ordinance delineating a zoning policy designed to protect the environment of Pinelands Area and limit development. The owner filed an application with the local planning board for a minor subdivision to create two separate residential lots. The application included a request for a variance pursuant to N.J.S.A. 40:55D-70(c)(2) to create a fourteen-acre lot rather than the required minimum of fifteen acres. At the variance hearing, the owner argued that the variance was warranted on the basis that the non-conforming subdivision was less than one acre deficient and the grant of the variance would both result in a public benefit and represent a better zoning alternative. The owner claimed that it made better planning sense to allow the variance for the nonconforming subdivision with two lots, than to require a single twenty-nine acre lot.

The board denied the application, ruling that the owner had not satisfied either the positive or negative criteria for an N.J.S.A. 49:55D-70(c)(2) variance. It found that such a variance could not be granted merely to advance the purposes of the land owner; rather, it was only appropriate when such a grant would further the purpose of the zoning ordinance and benefit the public. Therefore, since that the only benefit of the variance would be for the owner, the board held that the owner had failed to satisfy the positive criteria. Additionally, the board expressed concern for the cumulative environmental impact of even small deviations from the zoning ordinance in the environmentally sensitive Pinelands Area. Therefore, the relief sought was contrary to the goals of the relevant zoning ordinance and that the owner had thus failed to satisfy the negative criteria.

The lower court affirmed the board’s decision and held that even though it agreed with the owner, the law does not allow a court to simply substitute its judgment in place of a local planning board when the board’s decision is neither arbitrary nor capricious. The Appellate Division affirmed, holding that it was reasonable for the board to uphold the zoning policies of controlling density and protecting the environment by strict enforcement of the minimum lot-size requirement.

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