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The Palopoli Family Trust v. Zoning Board of Adjustment of the Borough of Avalon

A-0387-08T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — Courts are required to give land use boards a due level of deference while at the same time concluding whether the land use board as acted in an arbitrary, capricious or unreasonable manner.

The owner of an irregularly shaped lot applied for, and was issued, permission from the municipality’s zoning board of adjustment to construct a residence on the lot. The owner’s neighbor, after obtaining title to its own property, demolished its own existing single family home, intending to build a new one. The applicant’s plan for its property was similar to its neighbor’s, except for one difference – it was exempt from the setback requirements of the oversized lot ordinance while the neighbor’s property was not exempt. The neighbor appealed the zoning officer’s decision not to enforce the oversized lot ordinance against the applicant and requested an interpretation of the ordinance. The zoning board upheld the zoning officer’s determination, finding that the ordinance was not applicable to the applicant. The neighbor challenged the board’s finding.

On appeal, the lower court upheld the board’s decision. It believed the board’s interpretation of the ordinance was rational and consistent with its prior interpretations. The neighbor appealed further.

The Appellate Division affirmed, finding that the lower court correctly construed the ordinance in furtherance of its underlying legislative purpose and the lower court had given the zoning board the level of deference due, while still maintaining an independent conclusion that the board did not act in an arbitrary, capricious or unreasonable manner. Further, the Court’s independent reading of the ordinance persuaded it to conclude that the applicant’s property was exempt from the ordinance’s set back requirements. Finally, the Court permitted the applicant’s proposed driveway because the municipality had no ordinance prohibiting or granting driveway access across a public right-of-way. It held that there was nothing that prohibited a curb cut from being partially located on a public right-of-way, in front of, but not on, a neighboring property.

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