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Kawecki v. The Board of Adjustment of the City of Garfield

BER-L-8404-07 (N.J. Super. Law Div. 2008) (Unpublished)

ZONING — Local land use boards are accorded considerable deference given their proximity to, and knowledge of, local conditions and their findings are only to be overturned if found to be arbitrary, capricious or unreasonable.

Two property owners filed an application with a municipal zoning board of adjustment for permission to demolish their single family home and to construct a two family home in its place. The property was located in a residential district which allowed two family homes if they met the requirements for lot size, minimum yard setbacks, maximum building coverage, lot coverage, and floor area. The property had roughly one third of the required lot size, exceeded the maximum coverage limit, and was too small. Nonetheless, following a public hearing, the board voted to grant the application. Two objectors sued the board to challenge its decision.

The Court noted that findings by local land use boards are accorded considerable deference given their proximity to, and knowledge of, local conditions and such findings are only to be overturned if found to be arbitrary, capricious or unreasonable. Here, however, it found that the board provided no evidence to support approval of the application showing that the proposed home would have helped to conserve the character of the neighborhood or that there was such a need for rehabilitation. The testimony before the board did not overcome the negative criteria and did not show an exceptional practical difficulty or undue hardship, such as irregularities in the lot’s size or shape. The Court also found that the property owners did not satisfy the positive criteria of showing that granting the variance would have benefitted the surrounding neighborhood or would have furthered the intent of the master plan. Based on its findings, the Court reversed and invalidated the board’s decision that had approved the property owner’s application.


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