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Shri Sai Voorhees, LLC v. Township of Voorhees

406 N.J. Super. 497, 968 A.2d 218 (Law Div. 2009)

ZONING; ORDINANCES — When an ordinance depends on whether a structure exceeds a given height by a stated amount, it also will be interpreted to include situations where a structure is exactly that much above the given height.

A developer made an application to a municipality’s planning board for a zoning variance in connection with several proposed projects. A third party objected to the planning board’s grant of final major site plan approval for the projects. It contended that the planning board did not have jurisdiction to decide upon the application and that the matter should have been brought before the zoning board of adjustment. The third party sued the municipality.

The Law Division vacated the planning board’s decision. The relevant statute provides that if the departure from height regulations exceeds ten feet or ten percent of the maximum height permitted, the board of adjustment has jurisdiction to decide the issue, not the planning board. Here, the application was for a variance of five feet, which was exactly ten percent more than the maximum height permitted. After applying principles of statutory interpretation, as well as the analysis within Professor Cox’s treatise and the limited case law available, the Court felt that the statute was clear and unambiguous. To the Court, the ordinance’s language made clear that a request to erect a structure equal to or beyond ten percent higher than the maximum zoned height required a “special reason” or a “d” variance which can only be granted by a zoning board of adjustment and not by a planning board.

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