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Price v. Liberty Park at Union City, LLC

A-1435-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Variances that allow new nonconforming uses should be granted only sparingly and with great caution and applications that comport with the statutory criteria and which are founded on adequate evidence may be approved by a board especially where the proposed project would bring a property more in conformity with the municipality’s master plan.

A developer applied for variances and approval to construct a ten story, sixty-three unit apartment building. The proposed project was not a permitted use within the zone without variance relief. A resident-taxpayer of the municipality objected to the project. The zoning board granted the developer’s request for variances, finding that the variances were not inconsistent with the Master Plan and Zoning Ordinance of the municipality and that the project satisfied the enhanced burden of proof requirements of the Municipal Land Use Law (MLUL). The resident-taxpayer appealed the board’s determination.

The lower court affirmed, holding that the developer had met its burden by satisfying both the positive and negative criteria under the MLUL, and concluded that the board’s decision was not arbitrary, capricious or unreasonable. The resident-taxpayer appealed further.

The Appellate Division affirmed. Although it noted that variances to allow new nonconforming uses should be granted only sparingly and with great caution, it found that board did not usurp the legislative power reserved to the governing body of a municipality to amend or revise the zoning plan. It held that the board’s decision comported with the statutory criteria and was founded on adequate evidence. It ruled that because of: (a) the need for newer and additional housing; (b) the location of the project in a designated growth area; (c) the surrounding area consisting of mixed commercial and residential-use structures; and (d) the proximity to a neighboring municipality’s high-rise development zone, coupled with the unique topography of the property, the positive criteria and special reasons necessary to sustain a variance under the applicable statute were satisfied. The Court also ruled that the evidence supported a finding that the project would promote the general welfare of the municipality and noted that the municipality was located in an area designated by the State’s redevelopment policy as a designated growth area. It also found that the proposed use would promote open space by helping to stop suburban sprawl by concentrating housing populations in an urban area.

As to the issues relating to “negative criteria,” the Court held that the developer had demonstrated that the project would not negatively affect the character of the neighborhood or the municipality, that surrounding building views would not be obstructed, and that traffic flow would not be adversely aggravated. The Court also noted that the board had found that even though the present zoning of the site did not allow high-rise building, the project would bring the property more in conformity with the master plan with respect to residential development and would be a visible improvement to the neighborhood. According to the Court, the board recognized that its approvals paralleled the same approval that had been granted several years earlier for a sixty to sixty-five unit residential structure on the same property. Finally, the Court agreed with the lower court that the board had made appropriate findings regarding the area, coverage, density, floor area, and height variances incorporating the finding as to the use application.

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