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The Ridge at Saddle River, L.L.C. v. Planning Board of the Borough of Saddle River

A-2630-05T2 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; VARIANCES; HARDSHIP —An applicant for a hardship variance created when a county planning board mandates a situation that would violate a municipal zoning ordinance is not required to litigate with the county board as a pre-requisite to claiming the qualifying hardship.

In connection with a Mount Laurel suit, a municipality rezoned a particular property to permit development of sixty-eight residential units in return for a financial contribution to be used for affordable housing. The ordinance rezoning the property provided that ingress and egress be through one specific road, and another road was only to be used for emergency vehicle access. Consistent with the ordinance, a builder submitted a planning application. It was granted, but conditioned on approval by the county planning board. Because of internal disputes, a compromise plan was apparently approved in the form of an amendment to the original site plan. This also had to be approved by the county planning board. The county board ultimately approved the amended plan, but the plan required further modification because of neighboring municipality litigation. The builder then sought approval from the host municipality consistent with the county board’s approval of the amended plan. The municipality treated the submission as one requiring variances from the ordinance respecting ingress and egress to the property because the amended plan called for modified access to the road that had been authorized only for emergency use. The municipality concluded that the builder failed to demonstrate the kind of hardship necessary for this type of variance because it had not contested the county planning board’s direction with respect to access along the contemplated emergency road. This ruling was challenged in court, and the lower court concluded that the decision of the county board was sufficient to demonstrate the element of hardship if the variances were not granted.

On appeal, the Appellate Division affirmed the lower court ruling, finding that the municipality’s conclusion that the builder’s failure to challenge the requirement imposed by the county board rendered any hardship it suffered as self-created failed to take into account the county board’s superior position. It noted that the builder did not willfully attempt to avoid the municipality’s prior approval of ingress and egress. The builder did nothing other than accommodate the desires of the county planning board. The Court stated that it was aware of no authority that would require the builder, as a condition for a finding of hardship, to litigate with the county board to appeal the findings of their professionals. Thus, it concluded that the variances sought were compelled by the county planning board’s decision, a decision that created a qualifying hardship.

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