Mere Fact That Application Would Bring Development Closer Into Compliance With Zoning Code Insufficient to Warrant Grant of Site Plan Approval and Variance, N.J. Appellate Division Affirms

The New Jersey Appellate Division recently affirmed denial of an application for site plan approval and variance relief despite an applicant’s contention that the application’s issues identified by the Planning Board were too minor to justify denial of the application that would bring the subject property into conformity with the zoning code. Although unpublished and nonbinding, the decision confirms New Jersey courts’ broad deference to local boards in this state, making clear that if a land use board’s legitimate concerns are not addressed by an application, the mere fact that the application would bring a property into conformity with the local zoning code is insufficient to secure a variance under New Jersey’s Municipal Land Use Law.

In World Wheat Foundation, Inc. v. Planning Board of the Township of Saddle River, et al., a church-based, not-for-profit organization, sought site plan approval and variance relief to convert a property that previously served as a residential facility for the elderly into a vocational school to assist Korean families with language and the arts. The previous facility ceased operations more than two years prior to the application. The property was situated in the Township’s Secondary Business Zone, in which the former residential facility was not a permitted use, but the proposed vocational school was permitted. The applicant also sought a parking variance because it proposed 15 parking spaces, where 35 were required, arguing that the relief was justified because patrons of the school would be bussed and shuttled to the property. Nevertheless, the Board voiced concerns about the proposed deficit of parking and the adequacy of circulation for emergency vehicles, particularly in light of the possibility of increased student enrollment in the future and the corresponding potential enforcement problems that could arise. At one point, the Township Mayor noted that similar problems arose with a “Korean church [on] Saddle River Road” a few years prior. Ultimately, the Board denied the application.

The applicant filed an action in lieu of prerogative writs, alleging that the Board’s decision was arbitrary, capricious, and unreasonable because the proposed use “was a permitted, less-intrusive and more-suitable use of the property; and the objections made about parking and other issues were too minor to deny the application.” The applicant also alleged that the Mayor’s remarks about a different Korean church in the Township indicated bias. After a three-day trial, the trial court affirmed denial of the application.

On appeal, the applicant asserted denial of the variance constituted error for two reasons, neither of which the court found persuasive. First, the Appellate Division rejected applicant’s argument that the application should be approved because it “would bring the property into conformity with the zoning code and be a less-intense, more suitable use” than the previous use operating on the site. The court held it was immaterial how many parking spaces the prior use required because the residential facility began operating “well before the adoption of the current zoning plan.” More significantly, such argument was unpersuasive because each application is “judged on its own merits and based on the current zoning ordinance and current safety and emergency concerns,” and to assert that simply because the property did not conform to current standards under former ownership, the property need not comply now, is “counter to the Municipal Land Use Law and applicable case law.” Second, the court similarly rejected applicant’s assertion that the preexisting nonconforming parking on the property should be entitled to continue. Consistent with prior decisions, the Appellate Division held that “the only exception to a valid conforming parking variance is a nonconforming use which will remain of the same nature and intensity as the prior user,” and that “[e]ven a less intense use, as plaintiff argues this would be, is still a difference in use” requiring a variance. Accordingly, because the applicant failed to ameliorate legitimate parking and circulation concerns, the Appellate Division held that it did not satisfy the statutory criteria for a variance.

As to applicant’s argument concerning racial bias, the court found that the Mayor’s reference to another application as a “Korean church” was merely an identifier, used to distinguish it from three other churches on the same road, and because there were “legitimate reasons for this discussion,” held that “it [wa]s clear that racial bias played no part” in the Board’s action. Accordingly, the Appellate Division affirmed denial of the application.

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