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Puleio v. North Brunswick Township Board of Adjustment

375 N.J. Super. 613, 868 A.2d 1114 (App. Div. 2005)

ZONING; VARIANCES—Where an applicant has already been granted a use variance, only a ‘c’ variance is required from the zoning board for a subsequent minor subdivision application meaning that only a simple majority vote for approval is required.

A landowner was granted a variance to build a two-family house on his property. Shortly thereafter, the landowner applied for a variance to create a minor subdivision of the same property and was subsequently told by a zoning officer that the application required a “d” variance since it was a nonconforming use. The landowner disagreed. It applied for both a “c” and “d” variance, but only received approval for the “c” variance. Thus, although the application received a majority vote of four, the Board denied it since it did not receive five assenting votes. The landowner appealed, arguing that a “d” variance was not required since the two-family house became a permitted and conforming use after the initial variance was granted. The Board contended that the landowner’s proposed use would be an expansion of a nonconforming use for which New Jersey law requires five assenting votes.

The question before the Appellate Division was “what standard applies under the Municipal Land Use Law to an application for a subdivision of property that had previously been granted a use variance.” More specifically, the question presented to the Court was whether “the application only require[d] a simple majority vote of the members present ... or was [the application] an expansion of a nonconforming use, or a use variance which has the enhanced requirement of five affirmative votes under” New Jersey law?

The Court held the “Board’s jurisdiction to grant a ‘d’ variance [was] limited to” certain situations provided by New Jersey stature, and that if “the deviation sought is not one of those” situations, “then the deviation would not require a ‘d’ variance.” Some of these situations included:
(1) a use or principal structure in a district restricted against such use or principle structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to section 54 ... pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio ... , (5) an increase in the permitted density ... , or (6) a height of a principal structure which exceeds 10 feet or 10% the maximum height permitted in the district for a principal structure.

If the landowner’s application fell “within one of” those above delineated “categories[, then] . . . five affirmative voices” were required. The Court held that a “d” variance was not required for “detached one and two dwelling buildings resulting from a minor subdivision, which” was the application the landowner had presented to the Board. It also held that the landowner’s use should not be “considered an expansion of a nonconforming use, as the Board” had contended. Since the Board had originally granted the landowner a “variance to build a two-family dwelling, ... a ‘d’ variance [was] not applicable to” the landowner’s subdivision.

Additionally, the Court held that when a zoning board considers a “use” variance, it must “consider the overall site design” and that “the ‘c’ variances” are in essence “subsumed in the ‘d’ variance.” In conclusion, the Court held that the landowner’s “application was not a new ‘d’ variance application since it did not fall within the situations enumerated in the statute,” and that “only a majority of the quorum of the Board” was required. Since the landowner “received four affirmative votes,” he received a majority vote for his application, which therefore deemed it approved, and his summary judgment motion was granted.

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