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Rosenblum v. Stern

A-3936-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; NON-CONFORMING USES—A zoning board may permit expansion of a prior, non-conforming use if granting the variance would minimize the non-conformity and make the project more acceptable in its particular setting.

A neighbor filed a prerogative writ action challenging a local zoning board of adjustment’s approval of a use variance and site plan for the enlargement of a dilapidated decades- long non-conforming restaurant. The applicant had told the board that the existing restaurant on the lot was “not in character with the residential zone.” The applicant had sought approval to destroy the restaurant and to replace it with a new structure that would “harmonize” with the rest of the zone.

The lower court thought that a major issue was whether the variance application fell under N.J.S.A. 40:55D-70(d)(1) or under (d)(2). Section (d)(1) allows a board to grant a variance for “a use or principal structure in a district restricted against such use or principal structure.” Section (d)(2) allows a board to grant a variance “to permit . . . an expansion of a non-conforming use.” After reviewing the history of the property and the various applications with respect to the restaurant, the lower court concluded that the board was correct in treating this as a (d)(2) case, and that its decision was not arbitrary, capricious or unreasonable and that the proposed expansion “[was] not so clearly dramatic [or] so clearly enormous that it would call for the judiciary’s intervention.”

Based on the evidence, specifically the board’s statement that the variance “would tend to minimize the non-conformity of the existing restaurant and make it more acceptable in its particular setting,” the Appellate Division held that nothing in the record indicated that the board acted unreasonably, arbitrarily or capriciously.

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