Posted by: Patricia Salkin | January 23, 2011

NJ Appeals Court Upholds Reversal of ZBA’s Variance Denial Finding Proposed Use Would be Inherently Beneficial

The plaintiff had applied for a use variance to construct an additional parking area on a lot adjoining the existing bus depot and parking lot so as to reduce over-crowdedness and accidents. They also applied for a bulk variance so that the lot could be constructed of gravel, instead of asphalt.  The Zoning Board of Appeals (ZBA) denied the request, and the trial court reversed the ZBA.

The NJ appeals court agreed with the trial court that the use is beneficial to the community and the ZBA’s denial is not supported by the record. As such, the court affirmed the trial courts reversal of the use variance denial. Since the ZBA never ruled on the application for the bulk variance, the court vacated the trial courts order to grant the bulk variance and remanded the issue to the ZBA to make a determination.

The court noted that courts usually will not interfere with a zoning determination, unless it is arbitrary, capricious, or unreasonable.  However, such deference is not given where the zoning board relied on a mistaken interpretation of the law. In this case, the court found reversal was adequate as the ZBA based their determination on an erroneous interpretation of “inherently beneficial use,” as the New Jersey courts have stated that school bus lots are beneficial uses because they facilitate education. Additionally, the court found the reversal was fit as the ZBA based their determination on exaggerated, and in some cases, baseless claims.

Further, the court noted that the plaintiff satisfied the positive and negative requirements of New Jersey variance law, which requires special reasons for granting the variance and proving a lack of substantial detriment to the public. When a use is “inherently beneficial,” there is a presumption that it meets the positive requirement and that the second requirement should be limited to determining if there could be mitigation of the harm. The court found that the positive requirement was met and that any of the perceived harms could be mitigated by conditions (as they were in a later board decision).

Loori Bus Co. v. Township of Middletown Zoning Board of Adjustment, 2010 WL 5348718 (N.J. Sup. Ct., App. Div., 12/15/2010)

The opinion can be accessed at:


  1. thanks for the site. helpful in that I intend trying to reverse a local zba decision

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