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Maywood Retail Associates, L.L.C. v. Borough of Maywood Planning Board

A-1814-97T1 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; VARIANCES —Even if a planning board has recommended a change to the master plan that would obviate the need for a variance, it is not obligated to grant an applicant’s request for the variance.

A property owner requested a variance to permit use of premises as retail stores within a single-family residential zone at the edge of a commercial zone. A recent master plan re-examination report prepared by the planning board recommended redesignation of the property for professional and commercial use. This recommendation, however, was not adopted by the municipality’s governing body. Once its variance request was denied, based primarily upon the planning board’s recognition of the unsuitability of residential zoning for the subject property, the property owner took the position that the board’s decision was arbitrary, unreasonable or capricious. The Court, in reviewing the matter, acknowledged the centrality of that issue by saying: “[t]he only consideration on review is not whether the board could have properly granted the variance approval, but whether in denying approval it acted arbitrarily, capriciously or unreasonably in the exercise of its discretionary, quasi-judicial powers.” After analysis, the Court found the property owner’s claim to be without merit. Because the municipality’s governing body had twice rejected attempts to rezone the property in question from residential to commercial, the board’s decision to reject the variance application could not be said to have been the result of improper public influence. In addition, the property owner admitted that even if the master plan had been adopted by the governing body, its proposed use would not have fit under the new zoning scheme. Moreover, in the Court’s view, when the municipality’s governing body declined to revise the zoning ordinance after being made aware of prior applications for the same use variance, a variance applicant is subject to an enhanced burden of proof which, in this case, the applicant was unable to meet.


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