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TWC Realty Partnership v. Zoning Board of Adjustment of the Township of Edison

321 N.J. Super. 216, 728 A.2d 338 (App. Div. 1999)

ZONING; VARIANCES; APPLICATIONS—A complete application to a zoning board must be heard by the board even if the board believes that the application is so expansive as to be tantamount to a request for a rezoning of the parcel.

A real estate partnership challenged a zoning board’s refusal to review the merits of its use variance application to construct a multi-unit, congregate care housing facility for the elderly on a 23+ acre parcel in a 2200+ acre light industrial zone. When the partnership first applied for a variance, the board questioned whether it could rule on the matter. The zoning board reasoned that the breadth of the partnership’s application, as well as its size and intensity, together with its deviation from the standards of the light industrial zone precluded it from ruling on the variance. The partnership filed a revised application and, at the hearing that followed, the zoning board focused on whether it could decline to hear the application. It decided that it could decline to hear the application and exercised what it believed to be its right to do so.

The Appellate Division, citing the lower court judge’s opinion, affirmed the Superior Court’s reversal of the board’s decision, primarily based on the Municipal Land Use Law (MLUL). In doing so, the lower court rejected the board’s argument that the application was so expansive that it was tantamount to a request for a rezoning of the parcel. The court concluded that the MLUL vested zoning boards with the authority to regulate land development within the community. The zoning board is also vested with the authority to grant variances. The court also noted that the zoning board’s reliance on a case where a zoning board was reversed was misplaced, because the case did not stand for the proposition that zoning boards may refuse to hear variance applications if the variance would change the zoning plan, but rather stood for the proposition that zoning boards should rule against such applications. The court also found the board’s position particularly untenable since this case involved an “inherently beneficial” use. The zoning board was under an obligation to apply a four-part test in assessing whether the grant of the variance would cause a substantial detriment to the public good. The purpose of the test is to prevent municipalities from excluding inherently beneficial uses, so to allow the zoning board to deny jurisdiction would frustrate the purpose of this case law. Consequently, when faced with a complete application, a zoning board should decide it on its merits and not decline to hear the application on the premise that it lacks jurisdiction.


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