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Price v. Arslanian

A-2389-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; USE VARIANCES —When the proposed use for a property is consistent with a municipality’s master plan and the property’s distinctive location warrants its transition from industrial to mixed use, a property owner will have satisfied both the positive and negative criteria to obtain a use variance.

A lot zoned for light impact industry housed a two-story warehouse. The owner sought to renovate the warehouse for mixed commercial and residential uses, and his application to the zoning board requested use, height, density, parking, and bulk variances. An architect expert witness stated that the applicant desired to transform the structure’s shell into a three-floor eco-friendly concept of mixed use with an attractive façade. He concluded that the property would remain the lowest along the surrounding area and that the building would blend in well. A traffic engineer testified that there would be a insignificant increase in traffic as a result of the project. A professional planner testified that the property was at the extreme northerly edge of the zone, and that the surrounding properties had transitioned from industrial to residential. An objector filed an action in lieu of prerogative writs limited to the zoning board’s approval of a use variance. The lower court affirmed the resolution and dismissed the complaint.

On appeal, the Appellate Division found that the applicant had satisfied both the positive and negative criteria to obtain a use variance. Specifically, the property’s distinctive location warranted its transition from industrial to mixed use and the proposed use of the property was consistent with the municipality’s master plan.

Additionally, the objector argued that one of the board members was not a resident of the municipality when the zoning board granted the variance by a 5-0 vote, the minimum for passage. The objector thus argues that the application had not been approved because the vote should have been disqualified. The municipality requested an investigation which found that the member resided in the municipality one year after the application was approved.

The objector claimed that he was unable to present this issue to the lower court because he learned of the discrepancy after his appeal was filed. Generally, an appellate court will not hear issues raised for the first time on appeal. However, given that the residency issue arose after the lower court’s decision and the public interest in zoning matters, the Court issued a remand for further factfinding.

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