Posted by: Patricia Salkin | September 4, 2011

NJ Appeals Court Reverses Unreasonable Variance Denial

The Superior Court of New Jersey, Appellate Division, reversed the Borough of Bay Head Planning Board’s denial of a bulk variance to a property owner who wanted to build a home on a wetland area, holding that the denial was unreasonable because the property owner presented sufficient evidence to show that engineers could address concerns about drainage.                                         

The long-running dispute involved two votes before the local planning board, one that approved a variance in a 5-4 vote, and a second that denied the variance in a 5-4 vote.  The second vote was held after a neighbor who challenged the initial outcome established that one of the voting board members had neither attended hearings on the matter, nor read a transcript of the hearings.  The trial court affirmed the board’s denial of the variance, holding that the property owner had addressed issues related to street frontage and access for emergency vehicles, but had not presented adequate testimony to show that he could address drainage concerns. 

The appellate court reversed, holding that the second board’s denial of the variance was arbitrary and capricious, noting that failing to grant relief amounted to an undue hardship on the property owner, because the vacant wetland would not be marketable if it were not buildable.  As the opinion noted, the board could still deny permits if Mauro’s engineers were unable to develop and adequate site plan or if the drainage plan required elements that did not fit with the aesthetic standards of surrounding houses.  However, testimony given on the property owner’s behalf established that an appropriate drainage site plan was possible, so the denial of a variance was deemed unreasonable. 

Ten Stary Dom Partnership v. Mauro, 2011 WL 3362226 (N.J., App. Div. 8/5/2011) 

The opinion can be accessed here

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