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Price v. Union County Zoning Board of Adjustment

A-6411-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; CONDITIONAL USES; MULTI-FAMILY DEVELOPMENTS — Where there is no clear definition of what constitutes the conditional use of a limited multi-family development, but the zone primarily consists of two-to-four family dwellings, a land use board does not have the authority to grant a conditional use variance for structures over three stories.

A property owner sought approval for the construction of a building. It proposed that it be seven stories high with parking in the basement and on the first two floors, with apartments on the remaining five floors. The property was in a residential zone. A local resident challenged the proposal before the municipal zoning board of adjustment on the basis that structures over three stories were not permitted in the residential zone. Nonetheless, the board approved the proposal and granted a use variance for its construction. The memorializing resolution stated that the property owner was receiving a conditional use variance. In an action brought by the resident challenging the board’s decision, the lower court found that the board had the authority to approve the proposal as a conditional use variance.

On appeal, the Appellate Division pointed out that multi-family use in the zone primarily consisted of two-to-four family dwellings but that there was no clear definition of what constituted the conditional use of a limited multi-family development. Also pointed out was that garden apartments and apartment houses were limited to three stories. The Court, in agreement with the objector, found that the board could not ignore the provisions limiting development to three stories on the basis that there was no clear definition of limited multi-family development. As a result, the Court found that the board had no authority to grant a conditional use variance for structures over three stories. Approval of the property owner’s proposal was vacated and the matter was remanded to the board for a determination as whether the property owner could get a use variance, and if so, for a clear explanation of its basis for doing so.


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