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Wilcox v. Township of Wall Planning Board

A-3711-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — Where a land use variance requested by an applicant will only serve the owner’s marketability needs or convenience, rather than any zoning purpose, a land use board would be reasonable in denying the variances.

An individual owned property in a municipal zone that permitted office buildings. The property consisted of two lots, was triangular in shape, fronted a state highway, and backed onto an intersecting road. The first lot had two, small, unused one story buildings and the other lot was vacant. The landowner filed a development application with the municipal planning board seeking to demolish the existing buildings, merge the lots, and to build a single story 5,300 square foot office building with parking, landscaping, lighting, water, and sewage facilities. It requested bulk variances, and relief from the minimum lot depth requirements of 150 feet and 50 foot front year setbacks from both the state highway and the intersecting road. The proposed lot depth was 88.2 feet and the proposed setbacks were 20 feet. The proposal sought a widening of the intersecting road to permit entry into the property from both roadways.

The board heard testimony over five separate evenings. The board generally understood the need for variances because of the property’s irregular shape, yet became concerned over the plan for vehicular access on the intersecting road and the proposed clearing of mature trees along that street. The trees served as a sound and visual buffer from the state highway. The board asked whether the owner could build a narrower building that would come closer to satisfying the normal limits in the zone. The owner responded the proposed design was adopted for marketability purposes. Despite a low volume of traffic, the owner also asserted that two access points, rather than one on the state highway, was preferable.

The board denied the application, stating in its memorializing resolution that it did not believe access from the intersecting road was necessary given that there would be less than six to eight trips to the site during peak business hours. The board also concluded that a narrower building would have lessened the impact of the setback variance, and on both issues, granting such variances would have had a substantial negative impact. The owner sought review by the lower court, but that court upheld the denial, concluding that the owner had failed to satisfy the negative criteria for the variances sought.

The owner appealed further, but the Appellate Division affirmed, holding that it must give substantial deference to a board’s decision to deny a variance, and may only overturn a denial if the board’s action can be said to be arbitrary, capricious or unreasonable. Here, the Court held the board properly considered the approval of the site plan as contingent upon the approval of all variances, as the owner had submitted one application. While the Court agreed that the owner demonstrated a hardship because the irregular shape of its property reasonably required construction and development variances, it ruled that the board reasonably denied the specific variances sought. The Court held the board had reasonably concluded that the requested variances only served the owner’s marketability needs and convenience, rather than any particular zoning purpose. The board felt the variances could have been minimized if the building were constructed differently, and if only one access point on the state road were utilized.

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