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Rosenblum v. Zoning Board of Adjustment of the Borough of Closter

A-1967-10T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Conditions placed on the grant of a use variance can be used to satisfy the negative criteria test in the grant of that use variance.

A homeowner’s property was located in a residential zone, situated between an industrial use district and a commercial district. The property contained a single home dwelling and garage. Its owner wanted to use a portion of the property for a contractor’s yard and he needed a variance. He submitted an application to the municipality’s zoning board and introduced testimony from a professional planner. The planner opined that the portion the owner wanted to use for commercial purposes was problematic for a single family home because it was considered to have two front yards and no backyard. Therefore it was difficult to use the backyard because structures such as a deck or swimming pool would be prohibited by ordinances.

The planner also testified that granting the variance would be appropriate because it would provide a buffer between the single family homes and the industrial district. The homeowner testified that the property also had an unusual shape and size, and therefore was difficult to sell. The homeowner agreed to improve the aesthetic condition of the property and to satisfy other conditions imposed by the board. The board approved the homeowner’s application, finding that the positive and negative criteria had been met. An objector disagreed with the decision and filed a complaint alleging that granting the use variance was an arbitrary and capricious decision. The lower court disagreed, concluding that the decision was not arbitrary, capricious or unreasonable. According to it, the irregular shape of the property, the easements, and that it was a border property all supported the board’s conclusions as to the positive and negative criteria.

On further appeal, the Appellate Division concluded that the lower court and the board each properly analyzed the positive and negative criteria and it agreed that the board’s decision was neither arbitrary nor capricious. The homeowner had to prove that the proposed use would “promote the general welfare because the proposed site [was] particularly suitable for the proposed use.” In this case, the homeowner’s proof was sufficient; specifically that the property could not be used for residential purposes. The property could also be used for mixed purposes because of its surrounding areas. It bordered an industrial zone and it could serve as a good buffer. Under a negative criteria, an applicant must prove that the variance can be granted without substantial detriment to the public good and that it would not substantially impair the intent and purpose of the zone plan and zoning ordinances. The board placed conditions on the grant so that it would not adversely impact the surrounding area. For these reasons, the Court affirmed the board’s decision to grant the variance.

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