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Smith v. Borough of Fair Haven Zoning Board of Adjustment

A-3902-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES; HISTORIC STRUCTURES—Where there is no evidence that an applicant intends to demolish an historic structure if a variance is not granted, it is not proper to grant the variance based upon the mere possibility that the structure might otherwise be demolished.

The owner of a 1,200 square foot house was granted a Floor Area Ratio (FAR) variance to allow expansion to “a total habitable floor area of 3343 square feet, which exceeded both the FAR of 2801 square feet and the maximum habitable floor area for the R-10A zone of 3220 square feet.” All parties to the appeal agreed that “a FAR variance is a ‘d’ variance, which controls the intensity of use on a property.” To grant a “d” variance, a zoning board must find: “(1) that ‘special reasons’ exist for the variance, and (2) that the variance ‘can be granted without substantial detriment to public good and will not substantially impair the intent and purposes of the zoned plan and zoning ordinance.’” The applicable statute lists 14 special reasons, and the New Jersey Supreme Court “has noted that the preservation of the character of a neighborhood and conservation of neighborhood values are also proper zoning purposes.” Here, the zoning board found the following special reasons: (a) conservation of historic structures; (b) the home “was of historical significance and its preservation [would] benefit the entire community…” (c) if the variance were denied the historic structure would need to be destroyed in order to construct a dwelling that would fit within the permitted building envelope; (d) it provided light, air and open space; and (e) it provided “a desirable visual environment through good design and arrangement.” The Court’s analysis determined that the first three special reasons addressed the “historical nature of the existing structure and the need to preserve it.” The Appellate Division did not believe that those findings supported the grant of the FAR variance because there was no evidence that the owners “either intended to demolish their home if their application were denied or that they could not expand the structure and satisfy the FAR requirements.” As to the zoning board’s remaining finding “with regard to adequate light, air, and open space and a desirable visual environment for good design and arrangement,” the Court found these are insufficient as a basis for granting of the FAR variance. “In fact, these findings offer more support for the denial of the application than for the grant of it. Most importantly, the applicants failed to present special reasons why they could not expand their home and still meet the FAR requirements.” As a consequence, the Appellate Division found that the applicants’ “FAR variance lack[ed] support in the record and fail[ed] to meet the statutory requirements needed for such approval.”

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