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Ponte v. Township of Dover Planning Board

A-3795-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; HARDSHIP—The hardship standard does not require an applicant for a variance to prove that without the variance, the property would be zoned into inutility.

A self-storage company obtained variances allowing it to build two buildings on an L-shaped lot. Neighboring property owners appealed the grant, but the lower court upheld the board’s decision. On appeal, the neighboring property owners argued that the board failed to apply the appropriate criteria and make the necessary findings of fact to justify its decision but instead merely made conclusory findings to justify its approval of the request for the variances. The Court pointed out that the term “undue hardship” had been variously interpreted, but a New Jersey Supreme Court case “made clear that it refers solely to particular physical conditions of the property as those are described in [the subsection of the statute], not personal hardship, financial or otherwise.” As such, the hardship standard does not require an applicant to prove that, without the variance, the property would be zoned into inutility. “Thus, the correct focus must be one whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property.” Therefore, an applicant only needs to demonstrate that the property’s “unique characteristics inhibit ‘the extent’ to which the property can be used.” Here, the applicant’s engineer testified as to the unique shape of the lot which necessitated the setback variances. The engineer testified that the property also was unusual because it bordered two roads, giving it a double frontage. Therefore, the site required two front setbacks instead of one, and this requirement impaired development. The engineer testified that, but for this condition, the total setback would have met the front and rear setback requirements. Because there was evidence in the record to support the granting of the application for variances, the Court refused to hold that the board’s decision was arbitrary, capricious or unreasonable.

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