Skip to main content

Sohn v. Lopatcong Township Zoning Board of Adjustment

A-3361-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — Where a land use board’s decision is that any harm that would be caused by an applicant’s project on an undersize lot would be substantially outweighed by the creation of more harmonious lot sizes is a reasonable conclusion based on the evidence presented to the board, the board’s decision will be upheld by a court.

The owner of vacant land applied for bulk variance and subdivision approvals to create two residential lots on its parcel. The property was located within a “research office and manufacturing” zone (ROM zone) which was bounded on one side by a residential zone. The owner of an industrial park adjacent to the vacant land objected to the subdivision request. He was concerned that two residences abutting the industrial park would increase the likelihood that he would receive constant complaints about noise, lights or smell. The zoning board approved the bulk variance and subdivision requests. In response to the concerns of the industrial park owner, the board increased the side yard setback for the lot bordering the industrial park by an additional ten feet. The owner of the industrial lot brought an action to overturn the planning board’s decision claiming it was arbitrary, capricious, and unreasonable.

The lower court remanded the case to the board to specify the type of bulk variance granted and to identify the statutory criteria upon which the application was granted. The board, on remand, considered the positive and negative criteria required for a bulk variance under the applicable statutory provisions. The board made specific findings with respect to such criteria and again granted the application of the vacant lot owner. The owner of the adjacent lot sued again, claiming that the evidence did not support the board’s findings.

The lower court upheld the board’s determination, holding that there was sufficient evidence to support the board’s finding in favor of the vacant lot owner. The adjacent owner appealed.

The Appellate Division affirmed, noting that zoning board decisions are presumed to be valid and ruled that the board did not act in an arbitrary, capricious or unreasonable manner. It also found that the vacant lot owner satisfied the conditions of “hardship” under the statute because the property was irregularly shaped and unsuitable for any of the uses permitted in the ROM zone. Further, the absence of adjoining vacant properties precluded the owner from acquiring sufficient property to bring it into compliance with existing zoning requirements. Further, the Court stated that the board found that the lot would result in closer conformity with the size of surrounding residential lots and would have no adverse impact if the parcel was subdivided into two lots. It found that the board’s decision (that any harms were substantially outweighed by the “more harmonious lot sizes”) to be a reasonable conclusion based on the evidence presented to the board on the matter. In fact, the Court found that requiring usage of the parcel consistent with the ROM zone would have a significant negative impact upon abutting residential properties. Thus, it believed it was protecting future homeowners from any potential negative impact by upholding the board’s determination.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •