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Upper Saddle River Rt. 17 Improvement Assoc. v. Bd. of Adj. of the Borough of Upper Saddle River

A-2527-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; VARIANCES—Where it is obvious to a board that a variance applicant would not be able to purchase neighboring sewerage rights that would allow full utilization of a lot affected by a sewerage moratorium, it is reasonable for the board to find that the applicant is suffering a hardship.

An association of neighboring property owners challenged a use variance grant to a developer of self-storage mini-warehouses. The property in question consisted of approximately three acres which, under normal circumstances, could have been developed to about 40% of its lot coverage. Because of a sewer capacity problem, a limited amount of water was allocated to the land in question, meaning that permitted development would result in only about 5% lot coverage. As a result, the Court believed that no developer would undertake an under-use so economically unattractive. Consequently, in the Court’s view, the subject land was practically unusable for a permitted use. This constituted undue hardship, thereby satisfying the so-called negative criteria, a finding which was needed to support an application for a use variance. The complaining neighbors argued that the developer failed to prove hardship because it did not show that it had attempted to purchase water rights allocated to other properties. The Court, however, while recognizing some analogy to a typical undersized lot situation in which an applicant may be obliged to attempt to obtain additional land to make a lot conforming, nevertheless found that the two situations were not congruent. The Court was satisfied with the zoning board’s knowledge of local conditions including the understanding that without sufficient water allocation, property is unusable, that allocations are not generous vis-a-vis commercial uses, and that the likelihood of a brisk market in water rights, because of the deleterious effect on the selling property, was remote. The neighbors also argued that the grant of the variance for a prohibited use (a mini-warehouse) was tantamount to re-zoning and hence necessarily impairs the zone plan, leaving an applicant to the exclusive recourse of a legislative re-zoning. The Court rejected that argument. In its view, the grant of a use variance, by definition, permits a use otherwise prohibited. It found that there is not a great deal of difference between a use that is prohibited because it is not expressly permitted and a use that is expressly prohibited.


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