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NJ Appeals Court Upholds Variance Denial Where ZBA Found Proposed Conversion of Property from Single

Plaintiff, the Salt & Light Company (“Salt”), wanted to convert a residence to a three-family unit in order to provide transitional housing for the formerly homeless in a neighborhood that was zoned for single-family homes,. The original residence, which was already being used for transitional housing, contained five bedrooms and one kitchen. The proposed conversion would contain three kitchens, but only four bedrooms. The exterior of the structure would remain intact with only minor variations. Salt expected the same number of people to occupy the residence after the conversion. Salt applied to the defendant, Willingboro Township Zoning Board of Adjustment (“ZBA)” for a use variance, a site plan waiver, and a parking variance.

The ZBA held a public hearing on the application and the community expressed concerns of a negative affect it would have on the neighborhood. Subsequently, the ZBA denied the use variance and Salt filed a complaint. The Superior Court of New Jersey, Law Division, reversed the ZBA’s denial of the use variance and remanded for a determination regarding the parking variance and the site plan waiver. On remand, ZBA denied the application for the parking variance and the site plan waiver.

In the meantime, the Superior Court of New Jersey, Appellate Division, decided Salt & Light Co., Inc., v. Willingboro Township Zoning Board of Adjustment, 423 N.J.Super. 282 (App.Div.2011), (“Salt & Light”), wherein the same parties litigated the conversion of another single-family residence into a two-family home. There the appellate division upheld the ZBA’s determination that the benefits of providing transitional housing were outweighed by the detrimental effect of constructing a two-family home in an area zoned exclusively for single-family residences.  In light of that decision, the ZBA moved for reconsideration of the court’s prior order reversing the denial of the use variance. Salt filed a cross-motion to uphold the granting of the use variance and to reverse ZBA’s denial of the site plan waiver and parking variance. The Law Division granted ZBA’s motion for reconsideration and reversed the prior order granting the use variance. The Law Division also denied Salt’s motion for summary judgment and affirmed the ZBA’s denial of the parking variance and the site waiver. Salt appealed the order.

On appeal the Superior Court of New Jersey stated that the decision of a ZBA was subject to limited judicial review and that a decision of the ZBA is “presumptively valid” because such boards possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion and that courts will defer to a board decision if it is supported by the record and is not arbitrary, capricious, or unreasonable as to amount to an abuse of discretion and that a court will not substitute its judgment for that of a board ‘even when it is doubtful about the wisdom of the action. Furthermore, the court stated that N.J.S.A. 40:55D–70 provides, “No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”

Salt argued that the Law Division made an error in relying on Salt & Light because that case had wrongly applied the four-step test from Sica v. Bd. of Adjustment, 127 N.J. 152, 159 (1992). The court stated that in order to determine whether a variance would result in a substantial detriment to the public good, Sica requires a four-part test: (1) identifying the public interest at stake; (2) determining the detrimental effect that will ensue from the grant of the variance; (3) in certain cases, reducing the detrimental effect by imposing reasonable conditions on the use; and (4) weighing the positive and negative criteria to determine if on balance the grant of the variance would cause a substantial detriment to the public good.      

Salt argued that the ZBA failed to meet its burden under Sica because the proposed conversion was inherently beneficial, the exterior appearance of the home will be maintained, and the number of people housed will remain constant. Thus, according to Salt, there was no detriment to justify in the variance denial. Salt believed that Salt & Light was wrongly decided because it incorrectly applied the four-part analysis from Sica. The appellate court disagreed with Salt’s assertion because Salt & Light was in keeping with Sica, as well as with N.J.S.A. 40:55D–70 which provided that a variance even for an inherently beneficial use must not be granted if it will substantially impair the intent and the purpose of the zoning plan. Here, the court stated that the conversion of a single-family property to a three-family residence would substantially impair the zoning plan. Salt also appealed the denial of the site plan waiver and the parking variance these issues were now moot.

Salt & Light Co., Inc. v Twp. of Willingboro Zoning Bd. of Adj., 2013 WL 3305263 (NJ Super Ct App Div. 8/2/2013)

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