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One Greenwood, L.L.C. v. Glen Willow Partners, L.L.C.

A-0040-08T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — A land use board has the discretion to impose conditions when granting a variance, but is not required to do so especially where doing so would be inconsistent with the municipality’s ordinances.

A property owner received a municipal permit to demolish a building on the owner’s irregularly shaped lot. After the owner began demolition, a municipal official issued a “stop work” order claiming that the permit had been issued in error. He insisted that site plan approval and a variance were required. The owner appealed to the municipality’s zoning board. While the appeal was pending, the owner applied to the board for preliminary and final site plan approval and for variance relief. The owner’s neighbor opposed the application because he felt the proposed project would create parking problems for the neighborhood. After a hearing, the board granted the variance. It ruled that the narrowness and size of the applicant’s property would have resulted in an undue hardship to the applicant if the variance were not granted. It also found that the benefits of granting the variance substantially outweighed any detriments and concluded that there was sufficient on-street parking available to the property. The neighbor sued, seeking to reverse the board’s decision.

The lower court upheld the board’s decision, finding that the board’s actions were justified under the applicable statute and that there was sufficient credible evidence to support the board’s decision. Thus, it ruled that the board’s actions were not arbitrary, capricious or unreasonable. The neighbor appealed further.

The Appellate Division affirmed the lower court’s decision, holding that a could should not reverse the decision of a local zoning board unless that decision was a clear abuse of discretion. It rejected the neighbor’s argument that the lower court should have reversed the board’s ruling because the board had failed to impose a condition on its grant of the variance limiting the future use of the building. Instead, the Court held that a zoning board has the discretion to impose conditions when granting a variance, but it was not required to do so. It agreed with the lower court that the board did not abuse when it failed to impose future use restrictions on the owner as part of its approval of the variance. It also noted that there was no evidence that any similar restrictions had ever been imposed on any landowner in the area. Finally, the Court stated that the lower court was correct in finding that the imposition of a condition precluding the owner from converting the use of its building to another permitted use would be inconsistent with the municipality’s ordinances.

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