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Rollano v. The Zoning Board of Adjustment of the Borough of Point Pleasant

A-2954-02T5 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; NON-CONFORMING USES; DRIVEWAYS—A zoning board can deny an application to relocate a driveway for a prior, non-conforming use where it has received evidence that the new driveway would adversely affect traffic and create a safety problem and where the existing driveway is merely an inconvenient one.

The owners of two duplex apartment buildings, built pursuant to a 1972 variance, appealed from the lower court’s decision upholding the local zoning board’s denial of an application to relocate a driveway. The driveway led traffic from the buildings onto a busy county road. Relocating the driveway would direct the traffic onto a “quiet residential dead end street.” After the owners obtained certain bulk variances in 1972, the zoning ordinance was changed to prohibit multi-family dwellings in the neighborhood. As a consequence, the duplexes became pre-existing nonconforming uses.

Testimony before the board came from numerous residents who told the board that at least eighteen children lived on the street and that they had “bought their houses there because it was quiet and there was little traffic.” The neighbors believed that relocating the driveway would negatively impact their neighborhood and would benefit the duplex owners and the residents of the duplexes at the expense of the single family homeowners. The board accepted that testimony and denied the application “primarily because [it] concluded that it would create traffic and safety problems.” It also noted that relocating the driveway would remove a fence that had served as a buffer between the duplexes and certain homes. Further, testimony was heard that it would be easier for emergency vehicles to reach the duplexes through the existing driveway than it would be through the proposed, relocated driveway. Essentially, the zoning board believed that the requested relocation was “a matter of convenience rather than necessity” because the duplexes “already had access to the county road, albeit by way of a long driveway.”

The Appellate Division pointed out that courts “must defer to the determination of [a zoning] board, unless the municipal body’s action was arbitrary, capricious and unreasonable.” Consequently, because the Court believed (as did the lower court) that the zoning board’s decision was supported by the record, it refused to find the zoning board’s decision to be an abuse of discretion. The record amply supported the zoning board’s ruling. At the same time, the Court rejected the duplex owners’ “contention that the Board could not consider the impact of the application on traffic flow” because prior case law taught that “[a] planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site.” According to the Court, this includes “deciding that a property should have ingress to and egress from one street rather than another street.”

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