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Price v. 13-14 Union, LLC

A-6490-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; USE VARIANCES; HIGH-RISES — Just because a proposed building has no apparent individual heating plan does not mean that the building is not an apartment building or a high-rise because it is the size, shape, nature and relationship to other structures in the area that distinguishes between multi-family dwellings and apartment buildings.

A property owner sought a use variance to construct two seven-story apartment buildings in a residential zone that did not allow structures exceeding three stories or with more than four apartments. The zoning board of adjustment granted the variance after finding that the property owner’s proposal served the general welfare of the community. An objector brought an action against the property owner and the board, claiming that the board’s decision was arbitrary. The lower court affirmed the board’s finding that the proposal could be approved as a conditional use.

On appeal, the Appellate Division rejected the lower court’s classification of the proposed buildings as multi-family dwellings, which conclusion the board had based on the premise that since there was no apparent individual heating plant for the buildings, the buildings did not have to be classified as apartment buildings or high rises. Instead, the Court found that the proposed buildings were apartment buildings given their size, shape, and nature and their relationship to other structures in the area. The Court pointed out that multi-family dwellings with more than four units were a conditional use in the zone, but that high rise apartment buildings were not. It added that since the proposed buildings were prohibited, the landlord had the burden of proving either hardship, or that the proposed use would have inherently served the public good, and found that the property owner did not demonstrate either point. It also found that the property owner failed to establish why the general welfare would have suffered if the proposal was not approved, which was necessary to show that a prohibited use was particularly suitable for a property. Thus, the lower court’s decision was reversed and the board’s grant of the variance was vacated.


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