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Village Supermarkets, Inc. v. Borough of Garwood Planning Board

A-3282-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Because a use variance can only be granted where an applicant has demonstrated “special reasons,” a lower court, when concerned that a land use board had not made findings with respect to the positive and negative criteria, should remand the matter to the board rather than just entering judgment in favor of the applicant.

A health club applied to a municipality for use and bulk variances to expand its existing facilities. The health club was located in a shopping center zoned for light industrial use. After a hearing, the planning board granted preliminary and final site plan approval together with approval of use and bulk variances. A certificate of occupancy was then issued. Before the certificate of occupancy was issued, a supermarket operating in the same shopping center appealed the board’s ruling claiming it was arbitrary and capricious. The supermarket alleged that the proposed non-conforming use would bring parking, traffic, and safety concerns to the property. It also alleged that the applicant did not demonstrate an inherently beneficial use, nor did it demonstrate that it would suffer any undue hardship if the variances were not granted. It did not, however, make any objections to the board’s actions prior to the date that it brought suit against the municipality, i.e. during the board’s previous hearing on the matter.

The lower court remanded the matter to the board for the limited purpose of amending the resolution to state additional supporting facts relating to its approval of the application. After the board amended its resolution, the supermarket continued to object to the board’s findings. The matter was tried before the lower court. The lower court determined that there was insufficient evidence on the positive and negative criteria for a use variance under the statute, and held that the board did not find any reason why the applicant would suffer an undue hardship if the application was not granted. Thus, the lower court entered a judgment vacating the board’s approval on the ground that such a determination was arbitrary and capricious. The applicant appealed.

The Appellate Division reversed the lower court’s decision, holding the Municipal Land Use Law authorizes municipal zoning boards to grant variances from local ordinances when an applicant satisfies the statutory criteria. In addition, it noted that a use variance can only be granted when an applicant has demonstrated “special reasons.” It found that the lower court was principally concerned that the board had not made findings with respect to the positive and negative criteria. It the Court’s view, the lower court should have remanded the matter to the board to make further findings with respect to the positive and negative criteria for a use variance, rather than entering judgment in favor of the supermarket. Accordingly, it remanded the matter to the board for further findings with respect to the positive and negative criteria.


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