Skip to main content



Governing Body of the City of Perth Amboy v. Zoning Board of Adjustment of the City of Perth Amboy

2005 WL 2447193 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; MUNICIPALITIES; STANDING—A municipality has standing to challenge a land use board decision only if the variance granted would substantially alter the character of the district as that character has been prescribed by the zoning ordinance.

Property owners applied for approval of a subdivision and variance to subdivide a lot into two equal size lots. The original lot contained a non-conforming two-family house. The owners intended to build a new one-family house on the newly created lot. Even though the original lot didn’t exactly comply with the minimum lot size requirement, “there were quite a few houses in the area on half size lots.” There was no opposition and the application was granted. The municipal government filed a complaint in lieu of prerogative writs challenging the board’s action. The lower court dismissed the complaint on the ground that the municipality lacked standing. The municipality appealed. The Appellate Division denied the appeal, holding that a governing body “may only challenge a variance grant in the Law Division by an action in lieu of prerogative writs when the variance would have a substantial effect on the municipal zoning plan. ... The basic inquiry in each case must be whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance. That inquiry requires analysis and evaluation of such factors as the size of the tract itself; the size of the tract in relationship to the size and character of both the district in which it is located and the municipality as a whole; the number of parcels into which it is anticipated that the tract will be subdivided if subdivision is part of the plan, and the nature, degree and extent of the variation from district regulations which is sought.” Here, “the tract, if one may even call it that, was tiny, and its proposed development, which involved the creation of a single new lot with one house, was consistent with a number of other houses in the area built on” similar size lots. Accordingly, the variation was “obviously minimal” and the Court believed it would have no substantial effect on the zoning plan. Therefore, the municipality did not have standing.


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