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Price v. Himeji, LLC

A-4974-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — When an applicant is required to justify a variance’s departure from zoning requirements that a variance wouldn’t apply, it must show “special reasons” and that is flexible concept that depends on the specific facts and circumstances of each application.

A developer filed a zoning board application in order to demolish existing residential buildings and construct an apartment building with garage space. The property consisted of four adjoining lots. The project was not a permitted use under the municipality’s zoning ordinance and it deviated from some of the other zoning regulations. The project also required several variances under the Municipal Land Use Law (MLUL). So, the developer applied for a use variance, a height variance, and a density variance. At the board hearing, the developer presented expert testimony from an engineer, an architect, a traffic and planning expert, and a project planning expert. The zoning board approved the development and granted the variances, waivers, and site approval.

A neighboring property owner filed an action in lieu of prerogative writs to set aside the board’s decision. He argued that the developer had failed to meet its burdens of proof and that the board’s approval of the variances contradicted the MLUL. The lower court reversed the board’s decision, concluding that the board’s decision was erroneous because the property was not “particularly suitable” for the proposed use in that the developer had not proven that there was “no other viable location.”

The developer appealed the lower court’s decision. The standard of review for the Appellate Division in this case was whether the decision of the local board was supported by the record and was not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion. The Court concluded that the board had not abused its discretion and that there was sufficient evidence in the record to support its discretionary determination that the property was “particularly suitable” for the proposed use.

The MLUL allows zoning boards to grant variances where the applicant has shown both that a special reason justifies the departure from zoning requirements and that the variance will not cause “substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.” Here, the Court held that since the developer’s proposal did not inherently serve the public good and since the developer could not show undue hardship if it had to use the property for only the permitted uses in the zone, then it had to show that the property was particularly suited for the proposed use. To show that the property was particularly suited, an applicant has to show that the proposed use is “peculiarly fitted to the particular location for which the variance is sought.” The lower court defined “suitable” as having to promote the general welfare and also that there were no other locations available. It found no proof presented that there were no other sites in the municipality suitable for such an apartment building.

The Appellate Division disagreed, finding that “special reasons” is a flexible concept that depends on the specific facts and circumstances of each application. Here, the developer submitted uncontested evidence that the municipality had a need for new housing and that this property was particularly suited for the proposed multi-unit residential building. The zoning board also had found that the proposed project would provide new housing and that additional housing was necessary for the municipality’s growing population. Also, the board was unaware of any other suitable and available vacant sites in the municipality that would permit the development of a high rise building. In addition, the board had many reasons, and had received evidence, to support approval of the site and its building. Thus, the Court gave deference to the zoning board and its findings that the property was particularly suitable for the proposed use.

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