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Morehead v. The Board of Adjustment of the Borough of Fort Lee

A-3102-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING — When seeking to determine if there is an appropriate alternate site for what would be a conditional use, a zoning board does not have the authority to look at alternate sites or locations outside of its own municipality.

A zoning board granted a variance to a church to allow it to expand its mausoleum in a residential zone. Mausoleums were a conditional use and subject to the height restrictions for the particular zone. The applicant presented evidence that the mausoleum already was taller than the proposed addition. A neighbor objected, and the lower court considered both the positive and negative criteria for the application. The lower court observed that the applicant had proven a need for entombments; proven that the addition would ease a parking burden; and substantiated a functional practicality for the addition. Further, it noted that the objector’s real estate appraiser testified that the existing mausoleum had already diminished the value of the surrounding properties; any aesthetic concerns would be alleviated by planned extensive landscaping; and that traffic in the area would not be adversely affected by the addition. Finally, the lower court found that the board was not arbitrary, capricious or unreasonable in granting the height variance because the top of a typical residential peaked roof in the area was already above the zone’s mid-roof height maximum.

On appeal, the objector argued that the board should have insisted that the church consider expanding the mausoleum to an alternate site where it would not have blocked the residents’ view of the historic church, adversely affected their property values, and might not even require a variance. However, the Appellate Division found that the board did not have the authority to look at conditions or requirements other municipalities might place on land within their own bounds. Thus, the objector was properly barred from cross-examining the applicant as to alternate sites or locations for the expansion outside of the municipality.

Next, the Court held that the distinction between a public and private mausoleum was not based on religious affiliation, but rather on plot ownership. Thus, this mausoleum, for purposes of state law, was a public mausoleum. In denying the objector’s further claims, the Court found that air conditioners were not structures, and that noise from them was not a matter for the board’s consideration at the time of application.

The Court next found that the applicant expert’s testimony to the effect that the surrounding homes would not be diminished in value by the expansion was not a net opinion because the expert had provided a record of recent sales and had noted that there was already an existing mausoleum that was not a detrimental factor. Further, the Court found that the zoning board properly rejected the objector expert’s testimony because he relied solely on what he called “curb appeal” and had made arbitrary conclusions.

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