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Old Corlies Avenue Preservation Association v. Zoning Board of Adjustment of the Twsp. of Neptune

A-1529-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — Where an applicant’s proposal does not call for subdivision of its property and the applicant’s proposed use is similar to those on nearby properties, a land use board, in granting variances, is not rezoning by means of granting variances, but is performing its proper function in a typical application for variances.

An applicant applied for a use variance, bulk and dimensional variances, and final site plan approval from the zoning board in connection with the applicant’s intention “to build a combined car wash and express automobile oil and lube facility.” The approvals were granted and the lower court upheld them. On further appeal by a neighborhood association, the Appellate Division, also upholding the denials, set forth its reasons as follows. The applicant sought three separate prohibited uses. It was not required to make separate showings of special uses for each of the uses and the zoning board was permitted to “consider whether the developmental proposal as a whole satisfied the criteria for a use variance” under N.J.S.A. 40:55D-70d.

The neighborhood association also contended that the zoning board’s decision constituted prohibited “zoning by variance” rather than by ordinance. It urged that the court should have focused on “whether the requested variance would substantially alter the character of the district as set forth in the applicable zoning ordinance.” As to this issue, the Court looked at: “(1) the size of the tract, (2) the relative size and character of the zoning district, (3) whether the tract [would] be subdivided into a number of lots, and (4) the nature and extent of the variation from the regulations applicable in that zoning district.” Applying those factors, the Appellate Division, ruling in favor of the applicant, noted that the tract in question was less than one acre in area and comprised “only a fraction of the C-5 zoning district within the” municipality. The applicant’s proposal did not call for subdivision of the property and the proposed use was similar to those on nearby properties. Apparently, the Court held that the board “did not re-zone by means of variance but performed its proper function in a typical application for variances.” Further, just because the zoning ordinance did not “include car washes and lube and oil facilities as permitted uses in the C-5 zoning district, their exclusion did not deprive the Board of authority to consider the merits of an application for a variance.”

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