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Victor Recchia Residential Construction, Inc. v. Zoning Bd. of Adj. of the Twp. of Cedar Grove

338 N.J. Super. 242, 768 A.2d 803 (App. Div. 2001)

ZONING; VARIANCES—Where there is an inconsistency between an existing zoning ordinance and a newly adopted master plan, the ordinance must be substantially consistent with a master plan; In this context “substantially inconsistent” permits some inconsistency provided that it does not materially undermine or distort the provisions and objectives of the master plan.

A landowner applied to a zoning board for a use variance for two tracts of land which were split-zoned with a small portion of the property in a residential zone and the remainder in a limited industrial zone. The owner/developer was seeking to construct seven single-family houses consistent with the residential zone. The zoning board denied the application, finding that residential development of the property would impede the future development of the limited industrial zoned property. Approximately 7,500 square feet of property was in the residential zone, and 60,000 square feet was in the limited industrial zone. Most of the property was surrounded by land zoned for industrial use. Even at that, the municipality’s planning consultant and the developer’s planning consultant agreed that any development of the subject property, whether residential or indus, would require variances. Their disagreement was over the extent of the property’s potential for industrial development versus residential development. The land-use element of the municipality’s master plan designated the subject property as residential property. There was testimony before the board that residential, and not industrial, use of the property was also consistent with the text of the master plan, precluding the introduction of incompatible, non-residential use in residential areas. In fact, the municipality’s planning consultant conceded that the residential use proposed by the developer was “not entirely consistent with the land-use element of the master plan, but maintained that the appropriate way to resolve the discrepancy was by amending the ordinance of the master plan and not through a use variance.” Under the Municipal Land Use Law (MLUL), a municipality’s zoning ordinance and its master plan must be substantially consistent. “Where the governing body affirmatively changes the zoning ordinance, either by amendment or adoption, so that it is inconsistent with the master plan, that change must be effectuated by a majority vote of the full governing body and they must set forth specific reasons for doing so.” Here, however, an existing zoning ordinance was in effect when the new master plan was adopted. The governing body did not change the zoning ordinance to reflect the new land use element. This caused the inconsistency, leaving the question as to whether the ordinance was substantially consistent with the master plan. The MLUL does not define “substantially inconsistent.” Case law, however, states that “the concept of ‘substantially inconsistent’ permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the Master Plan.” With that in mind, the Court stated that it was “undisputed” that the zoning ordinance was not wholly inconsistent with the land use element of the master plan. Partial inconsistency does not render an ordinance invalid. Therefore, the Court needed to determine whether the zoning ordinance “so undermined or distorted the basic provisions and objectives of the Master Plan” so as “to warrant invalidation of the ordinance.” In this case, the municipality’s Master Plan had, as one of its goals, the protection and reinforcement of “prevailing residential patterns in the community” by precluding the introduction of incompatible non-residential use in these neighborhoods. The Court, looking at the record, found that the split-zoned property was essentially a narrow residential peninsula that was surrounded by industrial property. Accordingly, the Court felt that “[i]ncreasing residential development in this area would inevitably intensify the clash of incompatible uses contrary to the directive of the master plan.” As such, based on the facts of the case, the Court upheld the zoning board’s denial of the use variances and the validity of the zoning ordinances.

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