Posted by: Patricia Salkin | January 29, 2008

NJ Appeals Court Upholds Variance and Board’s Decision to Bifurcate Use Approval from Site Plan

The Board of Adjustment unanimously approved a use variance subject to site plan approval, for the construction of an 11,000 square foot health and fitness center, with a variety of incidental and accessory uses on a 33.2 acre tract of land located in a C-1 zone.  Allowable uses in the C-1 zone are: municipal uses, general business offices, non-hazardous laboratories, and light manufacturing. The land in the zone is fully developed except for the parcel in question, which represents 10% of the property in the district.  

In upholding the decision below which upheld the board’s approval of the use variance, the appeals court noted that the Board issued a twenty-five page resolution that indicated it had carefully reviewed the facts, responded to the arguments raised by Flopark Company (who had opposed the application), and that the board provided findings and conclusions that satisfied the state statutory standards for the granting of a use variance. The Court pointed out that although the proposed activities differed from those being conducted in other the other buildings in the district, the proposed building is similar to the other buildings.  Therefore, the Court commented, should the proposed business use fail, the building could easily be converted into an office building, which is a permitted use.  Lastly, the Court opined that the trial judge was correct in ruling that Board’s decision agreeing to bifurcate the use variance application from the site plan approval was within the discretion of the zoning board.  

Flopark Company, LLC v. Board of Adjustment, 2007 WL 3306712 (N.J. Super. A.D. 11/9/2007).   

The unpublished opinion can also be accessed at: http://lawlibrary.rutgers.edu/decisions/appellate/a0481-06.opn.html


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