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Sobel v. Thirty One North Main Street Properties, LLC

A-4358-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — A land use board, because of its familiarity with a community’s characteristics, is best suited to pass on variance applications and, for that reason, courts should grant such boards wide latitude in their delegated discretion.

A property owner applied for a use variance and site plan approval to operate its premises solely as a dental office. The use variance would permit the property owner to eliminate the residential unit requirement in the office-residential zone for this particular building. Under the ordinance, a dental office in this zone could only be located as part of a residence. The property owner’s neighbors sued the municipality after the municipality’s planning board granted the application.

The Law Division initially remanded the matter back to the board. The board was directed to clarify which statute it considered when it granted the use variance. The board was also instructed to determine whether use of the term “nonconforming use” in its resolution was made in error.

The board adopted a clarifying resolution and reaffirmed its approval of the homeowner’s application. It also specified the statutory provision upon which it was relying upon to make its decision. Further, its amended statement of findings acknowledged that references to nonconforming uses were inadvertently used. It noted that the applicant was expanding its permitted office use into the residential portion of the building. The homeowner’s neighbors sued again.

Again, the Law Division upheld the planning board’s determination. The lower court was satisfied that the board applied the correct statutory criteria before it granted the application. It also ruled that the board properly amended its statement of findings. Further, the lower court found that the board’s decision to grant the use variance was based on substantial evidence in the record, and was not arbitrary, capricious or unreasonable.

On the neighbor’s further appeal, the Appellate Division affirmed for the same reasons as set forth in the lower court’s opinion. It added that local officials, who are familiar with the community’s characteristics, are best suited to pass on variance applications and should be granted wide latitude in their delegated discretion. It noted that the lower court relied upon, and recited in detail, eleven pages of expert and lay testimony drawn from an extensive record obtained after three days of hearings. The Court also held that the board properly considered the following factors in finding the site was well suited for its continued use: (i) its history; (ii) its size; and (iii) the transitional nature of the zone. Finally, the Court noted that the property had been operating solely as a dental office since 2005 and there was no evidence of any detriment to the surrounding area.

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