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Township of North Brunswick v. Zoning Board of Adjustment of the Township of North Brunswick

378 N.J. Super. 485, 876 A.2d 320 (App. Div. 2005)

ZONING; MUNICIPALITIES—A municipality’s governing body does not normally have the authority to challenge a variance unless the land use board had exceeded its authority, such as where the requested variance would substantially alter the character of the district.

A zoning board granted a developer’s application for use and bulk variances for a proposed four-story luxury apartment building with eighty-five units averaging fifty-three and one-half feet in height in an R-2 zone. The proposed development exceeded the R-2 zone limitations which provided for single family detached houses, more than thirty feet in height. The zoning board, without finding the use inherently beneficial, nonetheless granted the variance. The board found that: the proposed use was uniquely suited to that location; was beneficial to the community; was aesthetically pleasing; and, was an ideal transitional zone between the R-2 residential zone and a nearby industrial zone. The municipality challenged the zoning board’s decision. The lower court found that the variance approval was contrary to the intent and purposes of the municipality’s master plan and that its overall effect was to alter the character of the area contrary to the master plan and inconsistent with the municipality’s development scheme. The lower court based its decision on the history of the R-2 zone. The developer’s property was one of twenty-one lots in a twenty-four acre tract that was re-zoned into an R-2 zone for the purpose of reducing population density reduction by preventing construction of apartment buildings on narrow, deep lots. The zoning board and the developer appealed, but the Appellate Division affirmed. It noted that a municipal governing board has the responsibility to establish the land use character of its municipality through the adoption of zoning ordinances that divide the municipality into districts, establish permitted uses within each district, and impose general limitations on construction. A zoning board of adjustment has a limited power to accommodate individuals where relief is warranted. The Court also noted that the municipal governing body does not normally have the authority to challenge a variance unless the board had exceeded its authority, such as where the requested variance would substantially alter the character of the district. The factors to be considered are: (1) the size of the property; (2) the property’s size relative to the size and character of the district and the municipality as a whole; (3) the number of parcels into which a property is being subdivided; and (4) the nature and extent of the deviation from the zoning ordinance. Here, the Court noted that the district was re-zoned only one year before the variance was approved, and that the purpose of the re-zoning specifically was to avoid excessive density in residential neighborhoods by prohibiting multi-family dwellings. As a consequence, the Court held that the zoning board, in approving the variance, blatantly rejected the zoning plan and substituted its own zoning vision.


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