Case Law Summaries

Taggart v. Borough of Spring Lake Planning Board

• Opinion Date: April 8, 2003
• Real Property Law
• E-Mail

ZONING; VARIANCES; NON-CONFORMING USES—While, under certain circumstances, aesthetic improvement can be a qualifying “special reason” to support the granting of a use variance, a board need not grant a variance based upon that reason, especially if the property can be used as is or can be brought into conformance with the applicable zoning ordinance.

A two story structure had “two apartments on the top floor, certified as a pre-existing nonconforming use, with a vacant first floor previously used as a luncheonette.” Its owner requested a “d” variance “to expand the two small existing apartments vertically so that each would occupy both the upper and lower floors and would use the space formerly used by the luncheonette.” The applicant contended that it would cost $350,000 to $450,000 to convert the property into a conforming residential use. In contrast, he believed that it would only cost $40,000 to $60,000 to renovate the building in the manner he proposed. The owner believed that his proposal would “substantially improve the appearance of the property, and the property otherwise had been forced into inutility.” The application was denied because the planning board “found the subject area was predominantly residential.” It also found that since it had been so rezoned, “most nonconforming uses had been removed and single family homes had been constructed in accordance with the Master Plan.” As a result, the board concluded “that the positive effects of granting the variance, namely the proposed improvements to the exterior of the building, did not outweigh the negative effects of expanding and intensifying a pre-existing nonconforming use that was out of character with the neighborhood and Master Plan and [that] would increase traffic in the area.” The board also believed, based on testimony from the applicant’s real estate expert, that the “property had greater value as a single family residence than as the proposed two-family apartment building.” The Appellate Division pointed out that a reviewing court is required to accord deference to a planning board, reversing only if its action was arbitrary, capricious or unreasonable. Further, the Court pointed out that it had “consistently held that because nonconforming uses are inconsistent with the current zoning, the nonconformity should be reduced to conformity as quickly as possible.” It didn’t matter that courts had recognized that, “in certain circumstances, aesthetic improvement of a nonconforming use that engenders conformity with the existing use may be a sufficient ‘special reason’ to justify a variance to expand the pre-existing nonconforming use.” In this case, the Court found ample evidence in the record to support the board’s action. It was clear to the Court that the applicant could “continue his pre-existing nonconforming use and rent out the apartments on the second floor as he [had] in the past.” In the alternative, the applicant could convert the building to a single-family dwelling.

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