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Vuocolo v. Borough of Point Pleasant Beach Zoning Board of Adjustment

A-4650-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; USE VARIANCES—Use variances should sparingly be granted merely to promote aesthetics and “appropriate population densities.”

A zoning board found that an application for a use variance in a subdivision had met the requirements of N.J.S. 40:55D-70(d) in that “the sub-division and proposed construction would be aesthetically pleasing and an enhancement to the surrounding neighborhood… .” Specifically, the resolution concluded that it was appropriate to grant the variance, “to promote a desirable visual environment through creative development techniques and good civic design and arrangement,” and “to promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of person, neighborhoods, communities and regions and preservation of the environment.” The lower court rejected the grant of the use variance, concluding that the board’s attempt to justify granting the subdivision application and related variances using “aesthetics” and promotion of “appropriate population densities” as special reasons, without more, was insufficient to justify replacing a conforming use with a non-conforming one. The Appellate Division agreed with the lower court, pointing out that the New Jersey Supreme Court had made it clear that when the question is “whether to allow a new use that does not conform to the existing zoning ordinance, concerns of ‘appearance and compatibility’ will rarely be a proper basis for a finding of special reasons.” Further, the Court perceived no circumstances that would have justified the erosion of border areas through the grant of such a variance, and held that the applicants’ property could be developed consonant with the existing zone plan. The Court also reminded the parties that “variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning.” Lastly, the Court held that the applicants failed to meet the enhanced quality of proof standards that must be met in these circumstances.


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