Posted by: Patricia Salkin | January 5, 2008

NJ Court Overturns Area Variance Denial Finding Board Relied on Too Narrow an Area in Their Review

In New Jersey, to obtain a variance, an applicant must prove both positive criteria (e.g., undue hardship) and negative criteria (“no variance or other relief shall be granted …without a showing that such variance or other relief can be granted without substantial detrimental to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance”).  See. N.J.S.A. 40:55D-70.  Over the years, the courts in New Jersey have stated that while the negative criteria constitute a safeguard to prevent an improper exercise of the variance power, application of the criteria should not “substantially limit the vitality and flexibility of use variances to afford appropriate relief from the general provisions of a zoning ordinance.” See. Medici v BPR Co., 107 N.J. 1 (1987). The courts have also noted that the quality of proof required to satisfy the negative criteria is less stringent that the enhanced proof mandated for a use variance, and that, among other things, attention should be given to that part of the residential area that may reasonably bear on the affected variance.  

In a recent appellate court case, the Court affirmed the trial court’s decision overturning the zoning board’s denial of a variance where the plaintiff construction company sought a variance to build a 2,400 square-foot single-family, two-story house in a district that required a minimum lot area of two acres and a minimum lot width of 200 feet, and the plaintiff’s lot was 1.69 acres and 110.19 feet wide. The Court found that 39 of the 358 lots in the area have less than 110 feet of width, and all of these 39 lots have less than two acres.  The trial court concluded that Board’s emphasis on a particular street in reaching its determination was too narrow an area, and that there was “no bright line test to determine that portion of the residential area that  that reasonably bears upon or affects the granting of a variance.” The Court reviewed tax maps of twelve neighboring blocks, an area with an approximate radius of three-quarters if a mile, and found a significant number of nonconforming lots, leading to its conclusion that the requested variance would not be a substantial detriment to the area.  

The Appeals Court agreed that the Board unreasonably relied on too narrow an area when reaching a conclusion that the plaintiff failed to satisfy the negative criteria, and noted that there was no testimony in the record that the granting of the variance would have a direct impact on the neighboring properties.  

Craig Taylor Const. Co., LLC v Township of Pittsgrove, 2007 WL 4245092 (11/16/2007).  

This unpublished opinion can also be accessed at: 


  1. Attended a Zoning Board meeting last month.
    A use variance was granted for a commercial
    landscaping business in a residential zone. No proof of hardship or benefits were ever even mentioned or discussed. Information on the law was read by one of the objectors, but was dismissed with the comment by the Twp. soliciter,
    “Where did you get this?”. Calls to 2 State Senators office were of no help. Seems there is no enforcement of the NJ law and zoning boards can do what they please. In this case, the father-in-law stated at the meeting that he was a former councilman… guess decisions are based on who you know. The applicant is now seeking a variance to build a 40 x 80 foot x 26 foot high pole barn to house the equipment, plus 3 trailers are to be stored outside. His web site indicates a sizeable business. Neighbors with whom he is friendly, and who did not want to oppose him, did not attend the meeting. They have stated that through the years he has kept his equipment at a place he rented and he just wants to house them at his home. Under oath, he stated that all the equipment has been, and is, kept at the site. Neighbors not complaining about the business was the justification for allowing the variance.
    Losing all confidence in government at all levels.

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