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Price v. 3121 Central Avenue, LLC

A-6252-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; USE VARIANCES — A board is reasonable in approving a use variance for a multi-family building in an industrial zone where the proposed use is a good fit for the community and the surrounding area had evolved from industrial to residential, public transportation is available in the immediate area, and the proposed use would be close to the center district of the municipality.

A developer sought a use variance and other variances to construct a multifamily residential building which would replace a non-conforming mixed use building in a municipality’s industrial-light impact use zone. At a zoning board hearing on the application, the developer’s expert indicated that the use’s impact on traffic would be negligible or possibly positive, given that a mid-rise residential building could generate less traffic than would a current mixed commercial and residential use. Another expert testified that the zone was ninety percent residential, light industry had left the region, and the proposed development would be consistent with the area. The board granted the developer’s application, finding that the use variance was not inconsistent with the intent and purpose of the zone plan or zoning ordinance.

An objector sued, challenging the grant of the zoning variances as unreasonable, arbitrary, and capricious. He claimed that the developer had failed to meet its burden to establish positive and negative statutory criteria for the use variance and that the variances granted substantially impaired the zone plan and zoning ordinance. The lower court found the board’s action was not arbitrary, capricious or unreasonable.

On appeal, the Appellate Division affirmed. It found the lower court correctly held the developer proved that the general welfare would be served because the use was peculiarly fitted to the particular location for which the variance was sought. The Court agreed with the lower court that the board reasonably concluded that the proposed use would make a good fit for the community and so satisfied both positive and negative criteria, in that the surrounding area had evolved from industrial to residential, that public transportation was available in the immediate area, and that the proposed use would be close to the central district of the municipality. The Court also found the board’s reliance on evidence of the likelihood of the same or less traffic and a desirable visual environment by the proposed use to be reasonable.

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