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Mountain Valley Group, LLC v. Township of Berkley Heights

A-0701-08T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Courts must give greater deference to a variance denial than to a grant of a variance.

A developer sought subdivision approval for a project to build four single-family homes. The municipality’s planning board had concerns that the subdivision would be difficult because of the topography of the property. It also heard testimony regarding: (a) the adequacy of the proposed access roadway for police, fire, and other safety vehicles; (b) the need for blasting because the entire tract was underlain by rock; (c) the need for permanent netting to deal with rock tumbling and sliding; and (d) the possible need for a retaining wall to deal with slippage and parting of rock. The municipality’s engineer also submitted a report saying that a variance might be needed for the common driveway as required by N.J.S.A. 40:55D-35. That statute states that “[n]o permit for the erection of any building or structure … be issued unless the lot abuts a street giving access to such proposed building or structure, ... .” The developer offered testimony that if a proposed cul-de-sac within the subdivision were a public street; all lots would have access onto a public street. It also provided testimony addressing the many safety issues raised by the board. At the end of the day, the board insisted that a variance was required because, although the four homes would connect to a common driveway, that path did not provide direct access to a public road. It denied the application for a preliminary major site plan approval. It found that the developer did not: (a) comply with the requirements for a variance because only one of the four proposed lots abutted a public street; (b) establish that there was adequate access for safety equipment to operate within the subdivision; (c) provide satisfactory testimony with regard to future maintenance; (d) demonstrate that the proposed rock face stabilization catchment measures could be accomplished without encroachment upon the adjoining property; and (e) adequately address the board’s concerns regarding the disruption of the natural topographic features of the property. It concluded that the request by the developer represented a substantial deviation from the subdivision standards under New Jersey law.

The developer challenged the board’s ruling, but the Law Division affirmed. It held that the board was not unreasonable in reaching its conclusions relating to the accessibility of emergency vehicles, the adequacy of the netting system, the maintenance of the slope, the amount of blasting, and the alteration of the natural terrain. For all these reasons, it believed the board did not act arbitrarily and capriciously by denying the application. The developer appealed further, but the Appellate Division affirmed the lower court’s ruling. It found that the lower court correctly made its determination in accordance with applicable law. It also agreed with the lower court’s conclusion that the board’s decision was not arbitrary, unreasonable or capricious. In addition, it held that courts must give greater deference to a variance denial than to a grant. It rejected the developer’s contention that the board based its denial of the subdivision application by reference to the general intent of New Jersey’s Municipal Land Use Law because it believed the record reflected that the denial was based upon numerous specific concerns. It also rejected the developer’s argument that a variance pursuant to N.J.S.A. 40:55D-36 (dealing with a “Section 36 variance”) should have been granted. It stated that the board could have granted a Section 36 variance provided certain conditions were met relating to emergency vehicle access. Here, the Court agreed with the lower court and the board that the developer had not adequately addressed these safety issues.

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