Skip to main content



Price v. Wilt

A-2322-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; “SPECIAL REASONS” — Under New Jersey law, “special reasons” in a zoning case exists if the use for which the variance is sought is not one that inherently serves the public good, and the applicant proves, and the land use board specifically finds, that the use promotes the general welfare because the proposed site is particularly suitable for a proposed use or, in the alternative, “special reasons” exist if undue hardship is proven.

Two buildings in an R-1 zone were scheduled for demolition. A contract purchaser intended to build a six story, twenty unit residential building with two levels of parking at the site. He applied to the municipal planning board for use, bulk, height, and parking variances. The board granted the application after finding that special reasons existed for the relief requested. It also found that the application could be granted without substantially impacting the public good or the intent and purpose of the municipality’s zoning plan and master plan. It further found no credible opposition to the project and determined that the applicant’s expert was credible. A third party appealed the board’s findings.

The Law Division affirmed the board’s approval and dismissed the complaint. It also ruled that the applicant was not required to obtain a density variance pursuant under the municipality’s zoning ordinance because the property was not in the municipality’s overlay district. The objector appealed further.

The Appellate Division reversed, holding that the proposed use required a “d(1)” use variance because it was not a permitted use in an R-1 zone. Such a “d(1)” variance can only be granted if an applicant demonstrates “special reasons.” The New Jersey Supreme Court defines “special reasons” as follows. Specific reasons exist if the use for which a variance is sought is not one that inherently serves the public good, and the applicant proves, and the board specifically finds, that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. In the alternative, special reasons exist if undue hardship is proven, meaning that the property cannot reasonably be developed with a conforming use. The Court found that the only evidence offered by the applicant as to having “special reasons” that served the general welfare were conclusory statements by one of the applicant’s experts. It also found that there was no evidence that the site could not be developed in conformity with the zoning ordinance and found the requested variance represented a drastic departure from the contemplated use for that zone in the master plan. Therefore, it found the board’s approval was unreasonable, arbitrary, and capricious and reversed the “d(1)” variance. Finally, as to dealing with the density requirements, the Court agreed with the objector that the board had misinterpreted its ordinance relating to density and should have applied the more stringent R-1 density restriction, not just to properties in the overlay district, but to properties located in all R-1 zones within the municipality, including the subject property. Since the applicant presented no evidence supporting its request for a density variance, the board’s action in granting one was deemed by the Court to be clearly unreasonable, arbitrary, and capricious. It thus vacated the order entered by the lower court and set aside the resolution adopting by the board granting the approvals.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com