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Meszaros v. Planning Board of the City of South Amboy

371 N.J. Super. 134, 852 A.2d 236 (App. Div. 2004)

ZONING; CONDITIONAL USES—A conditional use provision in a zoning code that does not specify the conditions applicable to the use is invalid because it gives no guidance to land use boards as to the requirements to be met.

A landowner applied to the local planning board for conditional use approval to build a two-family dwelling in a single-family residential zone. The owner found statutory authority for his conditional use application in a local ordinance that deemed construction of a two-family dwelling in a single-family residential zone to be a conditional use. The ordinance also directed applications to the planning board for approval of the use. The ordinance required the planning board to consider “reasonable elements which would affect the [public’s] health, welfare, safety, comfort and convenience” in deciding whether to approve the conditional use. After public hearings, the planning board denied the application. Its resolution recited that the owner did not apply for, nor did he address the need for, a required variance. On appeal, the Law Division reversed the board’s decision, holding that the applicant satisfied all the ordinance’s requirements.

On further appeal, the Appellate Division held the ordinance to be invalid. The Municipal Land Use Law and case law hold that a zoning ordinance may provide for conditional uses to be granted by a planning board, but only pursuant to definite specifications and standards which must be set forth clearly in the ordinance. This is because a developer is entitled to know the ordinance’s limit and extent with sufficient certainty and definiteness. In this case, the Court concluded that there were no conditions included in the conditional use authorization. This particular ordinance only stated, “[c]onditional uses permitted upon application and approval[:] [t]wo-family dwellings.” The Court felt that this made the construction of a two-family dwelling in a single-family zone a “phantom conditional use,” i.e., a conditional use in name only. A conditional use provision without conditions is not valid because it does not guide applicants or planning boards through the use of specific standards. Without such specificity, a planning board could encroach on the jurisdiction of the zoning board. That is why the planning board, in this case, was able to engage in an open-ended search for reasons to deny the application. It did not have to focus on whether any particular conditions were satisfied because there were none to satisfy. As a result, the Appellate Division held that the ordinance was impermissibly vague and that the planning board never had authority to review the owner’s application. Consequently, the Court affirmed the lower court’s decision to reverse the planning board, but held that the owner had to proceed before the zoning board to seek the necessary variances.


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