Skip to main content



Smith v. The Fair Haven Zoning Board of Adjustment

335 N.J. Super. 111, 761 A.2d 111 (App. Div. 2000)

ZONING; JURISDICTION—A planning board does not retain jurisdiction over a lot just because the lot was created by a subdivision approved by the planning board.

Property owners applied to the municipal zoning board to construct a two-story addition to a house. Nine years earlier, their predecessors in title had applied to the municipality’s planning board for subdivision of the property and for permission to construct a two-story addition. The proposed addition did not increase any existing non-conformity because the front facade setback was maintained. At that time, the planning board granted approval for the subdivision of the property and the proposed addition. The proposed addition was never constructed and the later application to the zoning board proposed a different addition. The new application, now before the zoning board, requested certain dimensional variances. In addition, the proposed addition reduced the front yard setback “a mere foot.” The application was hotly contested. After the board granted its approval, the complaining neighbors brought an action in lieu of prerogative writ challenging the zoning board’s decision. One argument was that the zoning board did not have jurisdiction to hear the matter because the planning board had heard the matter nine years earlier in the context of a subdivision approval. The Court rejected this argument, pointing out that the planning board did not retain jurisdiction over the subsequent applications for dimensional variances. In doing so, it rejected the neighbor’s argument “that because the lot was created by a subdivision, the Planning Board retained jurisdiction in perpetuity.” If that argument were accepted, “almost all variance requests would come before the Planning Board.” Another objection was that a member of the zoning board held ex parte discussions with the applicants and the objectors during the course of site inspections. Site inspection by zoning board members has been approved by the New Jersey Supreme Court. Counsel and opposing parties need not be present during a site inspection, but it is preferable that prior notice be given at a hearing to afford an applicant and interested parties an opportunity to prepare a response to the knowledge gained by a board member as a result of a site inspection. While the Court agreed that board members should not engage in ex parte discussions with interested parties concerning the merit or lack of merit of a particular application, “[s]ome conversation may be necessary.” The Court’s examination of the record disclosed that although the foregoing policies were not followed with exactitude, the board member who inspected the site did not vote on the application itself. The Court also characterized the interaction between that board member and interested parties as “innocuous,” and was “satisfied that none of the parties was prejudiced.” The Court also rejected the contention that the board improperly imposed a maximum time requirement during the hearings, finding that the objectors had ample opportunity to express their views. As to the merits of the application for dimensional variance, the Court focused on the meaning of “undue hardship” which “has been a fertile source of confusion. Nonetheless, it is agreed that it focuses on whether strict enforcement of an ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property.” Under one section of the applicable law, bulk or dimensional variances can be granted without proof of “undue hardship” where the variance is “rooted in the purposes of zoning and planning itself.” In such cases, the variance must advance the purposes of the Municipal Land Use Law. Under those standards, the Court found that the zoning board resolution was “woefully inadequate.” It did not “indicate whether the variance granted by the Zoning Board was based on ‘undue hardship’ caused by the unique condition land or structure, or instead was predicated upon the characteristics of the land or structure that afforded an opportunity for improved zoning and planning.” Further, the resolution did not describe or specify the unique condition of the property or structure resulting in undue hardship nor did it specify the characteristics of the land or structure that presented an opportunity for improved zoning. “The Zoning Board’s enigmatic reference to ‘providing additional space’ as an appropriate zoning objective, was far too nebulous in finding upon which the ground the grant” of the variance. Accordingly, the lower court’s judgment was affirmed in part and reversed in part and the matter was remanded to the zoning board for further proceedings, allowing the zoning board to reconsider the matter and to provide specific findings.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com