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Previti v. Upper Township Zoning Board of Adjustment

A-4482-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — Where a land use board, even with the best of intentions, merely assumes that the applicant’s proposal will resolve a problem, any determination by the board based on that assumption is arbitrary and capricious.

A municipality’s planning board renewed a property owner’s mining license and granted site plan approval and a buffer variance subject to certain terms and conditions. The property owner challenged the planning board’s authority to impose such conditions.

The lower court held that the board’s imposition of a 200 foot buffer zone did not interfere with the prior non-conforming use status of the lot. It ruled that the board had express authority to grant variances and place conditions of those variances. The lower court also found that the conditions imposed upon the variance were reasonably designed to mitigate the board’s concerns with respect to the granting of the variance.

On appeal, the Appellate Division noted that the planning board’s requirement that the owner create a berm topped by trees and erect a fence, together with the substantial buffer zone, was reasonably calculated to address the problems that required the imposition of the condition – to reduce the noise and dust generated by the owner’s mining operations. Nevertheless, although the Court did not question the ability of the board to impose conditions to its grant of variance, it held that the record was bereft of any evidence that a berm of any height would resolve or mitigate the noise and dust complaints of the owner’s neighbors. It found that the board – with the best of intentions – merely assumed that the creation of a berm would resolve the problem. Such a determination was held to be arbitrary and capricious. Because a twelve-foot berm is a substantial structure and no evidence was presented that the creation of such a structure would ameliorate the noise and dust problems, the Court remanded the issue to the planning board to develop an adequate record concerning the appropriate height of the berm.

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