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Schlatter v. Planning Board of the City of Englewood

A-0037-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; MERGER — Where a property owner seeks to restore its property to its pre-merged condition thereby creating two non-conforming lots, a variance is required.

A landowner sought a minor subdivision and associated variances for the property where he and his wife resided. The property was located in a residential zone requiring a minimum lot area of 44,000 square feet. The landowner wished to subdivide the property into two substandard lots. This required a variance. Additionally, the landowner needed a lot depth variance for the subdivisions. Hearings were held on the application. An objector argued that the minimum lot size was adopted to discourage subdivision and additional development in the neighborhood, and that one of the proposed new homes would rise to be about fifty feet above street level and therefore would not be in character with the neighborhood. The board rejected the application and made pertinent findings of fact and legal conclusions.

The landowner sued. The lower court upheld the board’s denial of the application. The landowner appealed.

The Appellate Division affirmed, noting that the landowner essentially sought to restore his property to its pre-merged condition with two non-conforming lots that required a variance. The Court noted that the benefits from the deviation had to substantially outweigh any detriment, and that no variance should be granted when merely the applicant’s purposes would be advanced. It ruled that any variance must present an opportunity for improved zoning and planning that would benefit the community. As such, the Court found that the board had ample grounds to reject the application, and the denial was not arbitrary, capricious or unreasonable. In doing so, it noted open-space objectives detailed in the municipality’s master plan.

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