Skip to main content



Olivio v. Township of Lower

ATL-L-93-04 (N.J. Super. Law Div. 2005) (Unpublished)

ZONING; PRESUMPTIONS—A zoning board’s decision is not entitled to a presumption of correctness by a governing body reviewing that board’s decision.

An applicant filed a complaint against its municipality’s governing body, appealing its reversal of the municipal zoning board’s approval of the applicant’s request for use and other variances. The municipality overturned the approval after several residents complained. The applicant contended that his plan to aesthetically improve the property—which was described as an “eyesore”—provided a “sufficient special reason to justify” granting him a variance.

The Law Division held that a zoning board’s decision is “‘not entitled to a presumption of correctness’” by a governing body reviewing that decision. The Court also found that variance approvals had been upheld where the applicant’s “‘aesthetic improvement of a nonconforming use” was utilized “‘to create better conformity with [an] exiting use within the surrounding area.’” Thus, since the applicant was “proposing to eliminate a non-conforming ‘eyesore’ and replace it with another non-conforming use which would exceed the density requirements for the ... [z]one” this was not the type of aesthetic improvement that would qualify for a variance. It also noted that a “governing body is directly responsible to the ‘citizenry,’ and is entitled to apply its own expertise and knowledge of the municipality in reviewing a decision of a zoning board.” As a result, the Court deferred to the municipality’s board’s decision since the record showed “that in applying its unique expertise and knowledge of the municipality, [the board] made its final evaluation based on the record created at the board hearing” and there was “nothing in [that] record” showing that that decision was capricious, arbitrary or unreasonable. The Court also found that the applicant’s plan would have substantially surpassed the zone’s density requirements.

The applicant claimed that his procedural due process rights were violated because the five residents who appealed the board’s decision “did not submit a brief in support of the[ir] appeal to the ... [governing body] and therefore” did not provide the applicant with “adequate knowledge of the issues being appealed, or the arguments to be made by the appellants.” The Court rejected this claim since the residents presented the same arguments at the hearing before the governing body as they did “at the Board hearing,” at which the applicant was present. Thus, the residents “did not present anything new at the hearing before the ... [governing body] which would suggest that [the applicant] was unaware as to what their argument or focus would be.” Additionally, the Court noted that New Jersey’s “Municipal Land Use Law ... does not require the parties to submit written briefs to the governing body.” Thus, for the foregoing reasons, the Court rejected the applicant’s due-process claim and affirmed the governing body’s decision reversing the board’s approval.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com