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Krause v. Township of Cranford Zoning Board of Adjustment

A-1958-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; BULK VARIANCES — In order to succeed on an application for modification of a conditional use under N.J.S.A. 40:55D-70(d)(2), a party must show: 1) special reasons for the modification; and 2) that the modification will not result in a substantial detriment to the public good or impair the purpose of the zone plan and zoning ordinance.

A company acquired property that contained a gas station. The property was located in the municipality’s business zone. The operation of a gas station within this particular zone was a conditional use. The company filed a variance application with the municipal zoning board to convert the gas station to a sandwich shop. The company sought to install a canopy, kiosk, and larger sign on the property. More specifically, the company requested five variances and three exceptions to: 1) exceed the permitted area of a pylon sign; 2) provide for less than the required distance from the sign to the property line; 3) place a sign on the canopy; 4) install a canopy and a kiosk in the front yard; 5) construct a canopy closer to the front property line than allowed; 6) allow parking spaces closer to the residential boundary line than permitted; 7) allow continued use of concrete curbing rather than Belgian block; and 8) eliminate a required bicycle rack. The board granted all of the company’s requests, except for its request to eliminate the bike rack and to use concrete rather than Belgian block. A man who owned a neighboring property objected to the company’s variance application and filed an action in lieu of prerogative writs challenging the board’s action.

The lower court upheld the action of the board. In reaching its decision, the Court held that because the gas station was a pre-existing conditional use of the property, the company was seeking permission from the board to modify a conditional use. The standard for evaluating applications to modify a conditional use is set forth in N.J.S.A. 40:55D-70(d)(2). This statute requires that the company show: 1) special reasons for the modification; and 2) the modification will not result in a substantial detriment to the public good or impair the purpose of the zone plan and zoning ordinance. With regard to the first factor, the company asserted that the variances were needed to aesthetically improve the property, which would make it more compatible with existing zoning. The Court upheld this argument to be a special reason for the proposed modification. As to the second factor, the company contended that the variances would enhance and improve the surrounding area, and therefore would not result in a substantial detriment to the public good. It further asserted that the variances would promote the overall purpose behind the municipality’s master plan by reducing the property’s nonconformity with the present zoning. The Court concluded that the company had met its burden of proof under the statute, and upheld the board’s granting of the variances. The man who owned the neighboring property appealed the lower court’s ruling.

The Appellate Division affirmed the lower court’s determination. It held that an action of a municipal zoning board should not be disturbed unless it is arbitrary, capricious or unreasonable. The Court concluded that the board’s decision to grant the variances was not arbitrary because the company had met its burden of proof under N.J.S.A. 40:55D-70(d)(2).


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