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RJB Associates, LP v. South Brunswick Township Zoning Board of Adjustment

A-5302-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; USE VARIANCES—A zoning board that grants a use variance without determining whether the proposed use is compatible with the zone is impermissibly engaging in rezoning.

A car wash sued a municipal zoning board after use and bulk variances were granted to a competing business. The car wash complained that the board’s decision to grant the use variance had little factual support. The Appellate Division agreed.

The applicant’s site proposal contained an expert’s assertion that “water conservation would be served” because the applicant would use much less water than an individual would use for a residence. The Court found this assertion “conclusory [sic] and unsupported” by any evidence. Additionally, the Court found that the board’s findings “unreasonably ignored” undeniable evidence that the applicant’s site would create significantly more traffic and that it was incomprehensible for the board to find that the applicant’s business was a “low level traffic use” since the purpose of the business was “to generate as much automobile traffic for as long as possible seven days a week.” Additionally, the Court found no indication of any “need for a car wash” at the proposed site.

The Court also found nothing in the record showing that the site could not be “developed with a permitted use.” Further, it found that the applicant provided no proof that the site’s surrounding wetlands would preclude any permitted use, showing no indication that the wetlands would affect usage of the site for single-family homes more than it would affect usage for a car wash. There was “nothing in the record” to support the Board’s judgment that the site “was particularly suited for the proposed use. None of the characteristics of a car wash, including its industrial commercial nature, its intense automobile traffic, and its intent to cater to transients and travelers, is compatible with the permitted uses in the RR zone.”

Finally, the Appellate Division held that courts give greater deference to “a board’s denial of a variance than to its decision to grant one” since “variances tend to impair sound zoning,” and that there is a “strong legislative policy favoring zoning by ordinance rather than by variance.” Thus, it found that the board impermissibly engaged in rezoning by variance when it didn’t determine whether the proposed usage was compatible with the zone.

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