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Sprint Spectrum, L.P. v. Board of Adjustment of the Borough of Roseland

A-5785-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—The standards for granting conditional use variances are slightly looser than those governing general use variances.

A telecommunications company challenged a municipal board of adjustment’s denial of its application for a conditional use variance to construct a wireless communication facility on the roof of a building in a non-residential zone. The company’s proposal exceeded the maximum number of cellular telecommunication structures that were allocated to be placed on the roof of a building pursuant to the municipal ordinance. The board denied the variance and the company filed an action challenging the board’s decision as being arbitrary, capricious, and unreasonable. The lower court agreed with the company and granted the conditional use variance. The board appealed. The Appellate Division affirmed. Generally, in order to obtain a variance from zoning regulations, an applicant must give special reasons that satisfy both positive and negative criteria. An applicant must demonstrate that the use “promotes the general welfare because the proposed site is particularly suitable for the proposed use.” It must also show that granting the variance will not impose a substantial detriment to the public good and also show that the variance is not inconsistent with the intent of the borough’s master plan and zoning ordinance. The standard for approving conditional use variances is slightly different from the general variance requirements. In the general variance situation, the applicant is requesting permission for a use that was otherwise prohibited, so the standard is more strict. In the case of a conditional use variance, the use in question is already permitted under the zoning ordinance but the applicant’s proposal deviates in some way from the approved uses and conditions. In the case of a conditional use variance, the applicant satisfies the positive criteria by demonstrating that, notwithstanding the deviation from one or more of the conditions in the ordinance, the site continues to be appropriate for the proposed use. To satisfy the negative criteria, the applicant must show that deviating from the ordinance’s condition will not impose a substantial detriment to the public good and is not inconsistent with the master plan. In this case, the Court agreed with the lower court’s determination that the company presented sufficient proof that its deviation from the board’s conditions satisfied both the positive and negative criteria for a conditional use variance and the board’s denial of the variance was arbitrary, capricious, and unreasonable.

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