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Saddle Brook Realty, LLC v. Township of Saddle Brook Zoning Board of Adjustment

388 N.J. Super. 67, 906 A.2d 454 (App. Div. 2006)

ZONING; USE VARIANCES —A board of adjustment cannot grant a use variance merely because it disagrees with a legislature’s decision to prohibit certain uses in the municipality.

A certain municipality had a commercial district containing a variety of uses, including three fast food restaurants. After the restaurants were established, the local legislature amended the zoning ordinance to prohibit new fast food restaurants in the municipality. The municipality’s planning board granted a developer site plan approval and bulk variances permitting the construction of a strip mall consisting of four buildings. At the time of the approval, the developer had a tentative agreement to lease one of the buildings to a certain franchisee for use as a fast food restaurant. Following the site plan approval, the franchisee applied for a permit to construct the fast food restaurant in the strip mall. The application was denied due to its prohibited use. The franchisee then applied to the board of adjustment for a use variance. A neighboring realtor opposed the application.

The board approved the use variance, finding that the general welfare was served because a fast food restaurant was particularly suitable to that location, and that there was no substantial difference between the proposed fast food restaurant and a traditional restaurant. Additionally, the board found that the fast food restaurant would have lower parking demand than a traditional restaurant because of its drive-through, making it particularly suited to the site. The realtor who had opposed the franchisee’s application brought an action challenging the validity of the board’s approval. The lower court affirmed the board’s decision to grant the use variance.

On appeal, the Appellate Division reversed the lower court’s decision. The Court concluded that the record did not support the board’s findings of special reasons to permit a use variance for a fast food restaurant, or that the variance would not impair the purpose of the zoning ordinance that prohibited fast food restaurants. The Court explained that a reviewing court gives less deference to a board’s grant than a board’s denial of a use variance, because variances that allow nonconforming uses should be granted sparingly so as not to impair sound zoning. To uphold a use variance, a court must find that the decision comports with the statutory criteria and is based on adequate evidence.

The Court went on to state the three situations in which the special reasons required for approval of a use variance may be found: (1) where the proposed use by nature serves the public good; (2) where the property owner would suffer an undue hardship if required to conform to a permitted use; and (3) where the use would serve the general welfare because the site is particularly fitted for the proposed use. Since the franchisee’s application failed the first two criteria, the Court found that to grant the variance, the board needed to have found that the location particularly suitable for a fast food restaurant.

The Court rejected the board’s explanation that the proposed use fit within the scheme of the shopping center, stating that the board did not find that the strip mall was a more suitable location than any other location in the municipality. Therefore, the supposed suitability of the location was not a special reason that would justify a use variance. Additionally, the Court found that the lower parking demand of the fast food restaurant would likewise be true of any other proposed site, precluding a finding of particular suitability of the location for the proposed use.

The Court further found that the board’s conclusion that there was no substantial difference between the proposed fast food restaurant and a traditional restaurant was irrelevant to the question of whether the strip mall was particularly suitable for the fast food restaurant. The board’s finding, the Court stated, was merely a reflection of its disagreement with the legislature’s decision to prohibit new fast food restaurants in the municipality. The Court noted that a variance should not be granted based on a board of adjustment’s conclusion that a regulation is not justified.

Finally, the Court explained that in order to ensure that a board of adjustment does not assume the legislature’s authority to regulate zoning, in addition to showing special reasons, an applicant for a use variance must demonstrate by an enhanced quality of proof that the variance is consistent with the purpose of the master plan and zoning ordinance, and the board must make specific findings that the showing was made. The Court found that the franchisee did not satisfy such burden. It noted that the proposed fast food restaurant was not merely a use omitted from a list of permitted uses, but was expressly prohibited. The franchisee did not present any evidence that the ordinance was outdated because the character of the municipality had changed since the zoning ordinance was adopted. Therefore, the Court concluded that the board’s grant of a use variance to establish a fast food restaurant constituted a usurpation of the legislature’s statutory authority. For that reason, the Court reversed the lower court’s judgment that affirmed the board’s grant of the use variance.

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