Skip to main content

Price v. Saroza

A-2342-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — A land use board must adhere to a local zoning ordinance’s definitions before it can characterize the nature of a proposed project and before it can determine whether the proposed project is a conditional use or a prohibited use within the zone.

A developer sought to raze two houses, each built on adjacent lots, in order to construct a four-story building in a residential zone. The municipal zoning board of adjustment granted the developer’s variance requests for density; lot coverage; front, rear, and side yard setbacks; building length; building height; and parking. The board found that the site was particularly suited for the proposed apartment house. On a challenge of the board’s decision by a nearby resident, the lower court affirmed the board’s approval of the variances. It found that the board appropriately decided the matter by considering the proposed building to be a conditional use and not according to the more stringent standard for prohibited uses.

On further appeal, the Appellate Division pointed out that in the residential zone when the developer’s proposed project was to be constructed, residential structures were limited to four-family dwellings unless a proposed project was a limited multi-family development meeting certain conditions. It found, in disagreement with the board and lower court, that the board incorrectly treated the developer’s proposed building as a conditional use within the residential zone by considering the building to be a limited multi-family development. Additionally it pointed out that, under the municipality’s zoning ordinance, a building exceeding the height for garden apartments was to be considered a high-rise apartment and could not be considered a limited multi-family development. Thus, the Court concluded that that the board should have applied the standard used for prohibited uses in making its decision to grant the developer’s variance requests. As a result, it reversed the lower court’s ruling affirming the board’s granting of the developer’s variance requests and remanded the matter to the board for a determination consistent with the Court’s decision.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •