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The Margaret Csaki Living Trust v. Planning Board of Plumsted Township

A-6784-96T2 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; VARIANCES—The purpose of granting a “c(2)” zoning variance is to enhance the goals of the municipality’s zoning and planning ordinances, not to relieve the applicant of what would be a burden to economic development. If the record supports the grant of a variance, the variance will stand even in the absence of the board’s recitation of the proper weighing process.

A planning board gave subdivision approval and bulk variance approval to a landowner to subdivide its property into six separate single family lots. Regarding the storm water discharge plan for the subdivision, the landowner presented plans showing that the water would run onto the property of a downstream neighbor. This neighbor complained to the planning board that the water runoff would contain contaminants that would damage the timber it raised on the property. The planning board found that the amount of runoff after development would not be greater than that prior to development. The neighbor challenged the planning board’s approval on the grounds that it violated the Freshwater Wetlands Protection Act and argued that the variances were improperly granted, but the lower court dismissed the claims and affirmed the planning board’s decision.

The Appellate Division first considered the argument that the planning board arbitrarily granted bulk variances to the landowner. The Court stated that variance questions are best entrusted to the board hearing the application, and that it would not substitute its judgment unless the board’s decision was arbitrary, capricious or unreasonable. It also stated that, pursuant to a prior New Jersey Supreme Court decision, the focus of a bulk variance application, “is not on the characteristics of the land which create a hardship for the owner…, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.” Kaufmann v. Planning Board for Warren Township, 110 N.J. 551, 563 (1988). In short, a bulk variance will not be granted when only the owner will be benefitted. Even if beneficial to the community, a variance will only be granted if the benefit outweighs the harm. Although the planning board failed to address whether it used this standard or not, the Appellate Division again cited Kaufmann for the proposition that a decision to grant a variance under N.J.S. 40:55D-70(c)(2) will stand even in the absence of a recitation of the proper weighing process. Since the planning board appeared to follow the statutory guidelines and properly exercised its discretion without prejudice to the neighbor’s rights, including resolving whether the variance would result in substantial detriment to the public good, the Appellate Division refused to overturn the board’s decision and affirmed the lower court’s ruling.

The neighbor also argued that because the storm water would both flood and pollute her land, the proposed subdivision violated the Freshwater Wetlands Protection Act and constituted a nuisance per se. The Appellate Division found no testimony indicating that its wetlands would definitely be flooded or harmed, only statements that such a result was possible. Additionally, there was testimony that the discharge rate would remain fairly constant and there was no evidence the runoff would result in an expansion of the neighbor’s existing wetlands. The Appellate Division concluded that there was no unreasonable interference with the neighbor’s use and enjoyment of its property as a result of the subdivision approval granted by the planning board, and that the board had ample evidence with which to reach its conclusions.


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