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Twin Oaks Realty Development, LLC v. Zoning Board of Adjustment of the Township of Cranford

A-2687-04T5 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; VARIANCES—Courts must give substantial deference to findings of fact by a land use board.

A developer was the contract purchaser of fourteen assembled properties. It submitted an application to the zoning board “for multiple variances to allow construction of a forty-unit townhouse development.” Hearings took place over eleven months and the developer amended its plan to reduce the number of units from forty to thirty-six. Townhouses were a conditional use in the zone, and the requested variance asked for permission to deviate from a denser requirement, the required distance from an adjoining zone, the permitted height, a restriction of living space beyond the second floor, and a use variance for one of the thirty-six units that fell in an adjacent, less generous zone.

“Density of the project was the primary concern for the Board and objectors.” A real estate broker opined that the development’s density was not any greater than two proximate senior citizen developments and another townhouse development in the municipality. The broker was unaware, however, that those properties were in different zones with different density requirements. The developer’s planner opined that the development requirements for the townhouses were archaic. On the other hand, the municipality’s Environmental Commission opined “that the development would exacerbate the [municipality’s] flood control efforts, would increase the community’s density, would increase traffic, and would increase the amount of impervious surface.” The board also was concerned that its tax ratables would not cover the additional municipal expenses to support the project. Ultimately, the zoning board denied the variances, essentially because of the density problem. It “concluded that the applicant had not demonstrated special reasons for the use variance and had not demonstrated that the site was an appropriate site for the use as designed or that the relief could be granted without substantial detriment to the public good and the zoning plan.”

The developer appealed, but the lower court affirmed the zoning board’s action. That court held that the applicant failed to adduce sufficient proof of special reasons to depart from the conditions of the [zoning] ordinance.” It also found that the applicant “failed to establish special reasons for the conditional use variance.” The applicant made a further appeal.

The Appellate Division, on that appeal, held that the lower court “appropriately focused on the denial of the conditional use variance.” It agreed that the significant problem was the “applicant’s desire for thirty-six units rather than the permitted twenty-six units.” It recognized that substantial deference is required to be given to findings of fact by a land use board and that a court “may reverse discretionary rulings only if the municipal action was arbitrary, capricious or unreasonable.” According to the Appellate Division, the lower court was correct in finding that the land use board’s action was not arbitrary, capricious or unreasonable.

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