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Royal Oaks Apartments, LLC v. South Brunswick Township Board of Adjustment

A-3350-02T5 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—To overcome a conflict between a master plan and a use variance, a zoning board must adopt clear and specific findings that the grant of the use variance is not inconsistent with the intent and purpose of the master plan.

A property owner applied for a use variance, intending to develop the property as restaurant, office, and retail space. It needed the variance because the property was located in a “C-3 highway commercial” zone that did not permit its proposed retail component. The applicant’s expert opined that the C-3 classification was intended to lead to uses that generated moderate traffic levels with highway-oriented commercial services on large lots. This would result from long road frontages, thereby reducing the number of expected road openings. Since the proposed plan would only have one access point to the highway, the expert concluded that the use would satisfy the purpose of the C-3 ordinance. The applicant’s expert also concluded that the site was unique and particularly suited for the proposed use. When the municipality adopted its 1994 master plan, the property was still zoned as “industrial” and the site being used as a rubber factory.

A local apartment complex opposed the plan and criticized the application because it allegedly failed to reconcile the proposed use with the municipality’s most recent, 2001 master plan. The planning board granted the use variance, finding that the mixed use development would be beneficial to the general public. On appeal, the lower court reversed that decision because it did not believe that a proper showing had been made that the site was unique. It felt that all of the evidentiary support offered by the owner dealt with the condition of the property, and not its proposed use. The lower court also held that the applicant’s expert’s opinion that the site was “unique and [was] particularly suited for the intended use” was a net opinion, unsupported by any facts in the record. Specifically, the lower court noted that because access to the site was limited by a floodplain and wetlands, the goals of limited access would have been achieved by any use.

The lower court also disagreed with the owner’s reliance on the municipality’s 1994 master plan. It held that although it may have been true that the property was not rezoned in 1994 because the rubber factor still occupied the land, the municipality had developed a new master plan in 2001. By then, the rubber plant had been demolished but the property’s zoning classification had been left unchanged. Therefore, the lower court held that the board’s failure to reconcile the 2001 master plan rendered its decision “deficient.”

On further appeal, the Appellate Division pointed that the property could have been used for restaurants and offices without a variance and the only prohibited use was retail. Accordingly, since there was no evidence that the property was particularly suited for retail use, and the property could be used in a manner conforming to the zoning ordinance, the Court failed to see any basis for finding an undue hardship. Inability to maximize profit from a parcel without a variance is not undue hardship.

The Court also held that the owner failed to show how the proposed use would satisfy the positive criteria requirement of promoting the general welfare. There was no evidence that suggested that the property was so unique or well-suited to provide retail services. To satisfy the required positive criteria, something more is required then a suggestion of general services. The applicant also failed to satisfy the negative criteria. To do so, an applicant must demonstrate that the variance can be granted without substantial detriment to the public good, and that the variance will not substantially impair the intent and purposes of the master plan and zoning ordinance. Here, the Court found the board’s failure to consider the 2001 master plan highly relevant. To overcome a conflict between a master plan and a use variance, a board must adopt clear and specific findings that the grant of the use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. Since the board failed to consider the 2001 master plan, the record was devoid of such evidence. Conclusory statements by a board that a variance does not frustrate the intent of a zoning ordinance do not satisfy the negative criteria. For those reasons, the Appellate Division affirmed the lower court’s reversal of the board’s decision to grant the use variance.

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