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United National Bank v. Zoning Board of Township of Tewksbury

A-3458-01T3 and A-3529-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES; WAIVER—Seeking a large and diverse group of variances and waivers does not impermissibly transform an application into a de facto re-zoning.

A bank contracted to buy a corner lot to build a branch office. At the time, it operated a bank on a larger lot across the street. The new lot was originally used as a gas station, subsequently as a restaurant, and then became a “now-vacant real estate office.” Over time, there were many appurtenant structures “including a walk-in freezer, propane tanks and dumpsters.” Originally in a commercial zone, the property, had become located in the Village Business zone. The existing structure on the site was non-conforming in many aspects. The bank decided against renovating the building and opted instead “for a more expensive but completely new, redesigned building which it hoped would be more consistent with the character of the [Village Business] zone and the adjoining Village (V) zone.” It would imitate the appearance of a large Victorian home. The bank’s plan required numerous variances.

The zoning board decided that a bank was not a permitted use and that a use variance was needed. In addition, the bank requested numerous other variances and “waivers from design and performance standards.” After nine days of testimony, the zoning board granted all of the requested variances and waivers.

A neighboring bank filed a complaint in lieu of prerogative writ seeking to overturn the decisions of the zoning board. At the same time, the applicant-bank challenged the zoning board’s determination “that the bank was not a permitted use in the zone.” The lower court affirmed the board’s decision that the bank was not a permitted use, and “determined that the site plan was properly approved and that the matter was properly noticed, but remanded to the Board for further deliberations and findings of fact.” On remand, “each member of the Board summarized on the record his or her reasons for voting to grant the variances and waivers” and the approvals were reaffirmed unanimously. The competing bank again sought relief and a different judge heard the matter “and issued his written opinion reversing the Board’s decision to grant the use variance.” Here, the lower court “determined that the Board had failed to apply the correct standard for deciding whether special reasons supported the variance and had instead focused only the improved aesthetics of the new building.” Further, the lower court found that the Board had “failed to make any findings concerning whether the community needed another bank, [whether] it properly based its decision on hardship and failed to apply the enhanced proof standard as to the negative criteria.” The zoning board then appealed, arguing that the lower court judge in the second instance, failed “to accord [the board’s] decision the usual presumption of correctness… .” The applicant-bank echoed those arguments.

The Appellate Division reviewed the resolution and the six specific reasons within the resolution addressing whether the proposed use variance promoted the purposes of the Municipal Land Use Law. It ruled that the Board considered and determined that the applicant “had proven the negative criteria because the proposed bank’s use would be no more intensive than the uses the permitted in the [Village Business] zone, [and that] the design of the proposed bank [was] more consistent with the overall nearby architecture than [was] the existing building on the site and more consistent with the zone than the existing [bank building across the street] ... .” Essentially, the Appellate Division believed that the lower court, “in reversing the grant of the use variance, did not address the contents of the resolution, but relied instead only on the remarks of the various board members at the hearing following the remand.” As a result, the Court concluded that the lower court “took an unnecessarily narrow view of the Board’s findings by relying on the transcript for the hearing on remand and by failing to consider the detailed reasons and grounds identified in and supporting the resolution. In doing so, [according to the Court, the lower court judge] inappropriately substituted his own view of the proposed variance for that of the Board and failed to accord the Board’s thorough and careful resolution the deference to which it was entitled.”

The Appellate Division also addressed the objecting bank’s argument “that the combined grant of variances and waivers constituted an alteration in the zone sufficient to deprive the Board of jurisdiction to act.” Essentially, it argued “that the numerous variances, taken together, [would] result in permission to construct the building so far out of character with the overall zone and with the intention of the zoning ordinance that only the governing body in fact had the power and authority to address it.” The Appellate Division rejected that argument, concluding that “simply because an applicant seeks a large number and diverse group of variances and waivers, [does not mean] that the overall application has been impermissibly transformed into a de facto re-zoning. In fact as we have previously held, ‘[t]he test of whether the Board has been engaging in proscribed legislation must ultimately be one of both geographic and functional substantiality vis-a-vis the plan and scheme of the municipality’s zoning ordinance.’”

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