Cerdel Const. Co., Inc. v. Township Committee of East Hanover Tp. in Morris County

Decision Date11 June 1981
Citation86 N.J. 303,430 A.2d 925
PartiesCERDEL CONSTRUCTION COMPANY, INC., a New Jersey Corporation, Plaintiff-Appellant, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF EAST HANOVER IN the COUNTY OF MORRIS, aMunicipal Corporation, Defendant-Respondent, and Board of Adjustment of the Township of East Hanover, a public corporation, etal., Defendants.
CourtNew Jersey Supreme Court

Fred G. Stickel, III, Newark, for plaintiff-appellant (Stickel & Koenig, Newark, attorneys).

W. Cary Edwards, Jr., Oakland, for defendant-respondent (Edwards & Gallo, Oakland, attorneys).

William M. Cox, Newton, submitted a brief on behalf of amicus curiae New Jersey Federation of Planning Officials (Dolan & Dolan, Newton, attorneys).

The opinion of the Court was delivered by

SULLIVAN, J.

This is a companion case to Evesham Township Zoning Board of Adjustment and Wilbert D. Abele v. Evesham Township Council et al. decided this same day. 82 N.J. ---, 430 A.2d 922 (1981). Certification was granted herein to consider plaintiff's assertion that the Appellate Division had failed to pass upon the novel issue of the appropriate scope of review to be applied by the municipal governing body in considering an appeal from a board of adjustment's decision granting a use variance. 1 85 N.J. 139, 425 A.2d 293 (1980). We have decided that issue today in Evesham, holding that under N.J.S.A. 40:55D-17 the governing body is vested with the power of de novo review of a local board's decision.

Plaintiff owns a large tract of land on Ridgedale Avenue in East Hanover, New Jersey. The area is zoned for single-family residential use and the property has a dwelling on its northerly portion. Plaintiff proposed to subdivide the property into two parcels and develop the southerly portion for use as a professional building. The remaining portion on which the existing dwelling is located would continue to be devoted to residential use. Accordingly, plaintiff filed an application with the East Hanover Board of Adjustment (Board) for a subdivision of the property and a "special reasons" use variance. N.J.S.A. 40:55D-70(d). Following a contested hearing at which numerous property owners appeared and objected, the Board by a divided vote granted both the subdivision and the use variance. A dissenting Board member filed an opinion stating that the property was suitable for residential development and that "special reasons" for the variance had not been shown.

On appeal to the East Hanover Township Committee (Committee) by approximately 105 property owners, pursuant to N.J.S.A. 40:55D-17, the decision of the Board was reversed in its entirety, inter alia, on the ground that special reasons for the variance had not been shown. The Committee also held that the Board's decision was an improper attempt to rezone the property beyond its statutory authority and directly contrary to the recent decision of the Committee which changed a short-lived PB-1 zone plan for the tract (which permitted office buildings) back to its original single-family residence use. Plaintiff then filed a complaint in lieu of prerogative writs to review the Committee's ruling. A plenary hearing was held before the Law Division which ultimately ruled in favor of plaintiff, holding essentially that special reasons had been shown and that the grant of a variance would not adversely affect the public good or the existing zone plan.

On appeal, the Appellate Division reversed. While the court found that the negative criteria necessary to support a variance application under N.J.S.A. 40:55D-70(d) had been satisfactorily established, it was convinced that plaintiff had not demonstrated the requisite "special reasons" for approval of such a variance. The Appellate Division, therefore, held that the Board had abused its discretion in granting the variance, that the decision of the Committee reversing the Board was entirely proper and that the action of the Law Division reinstating the grant of the variance was reversible error. We now affirm.

Actually, the issue posed by plaintiff in its petition for certification is not reached if special reasons for the variance were not established. Whether or not special reasons have been shown is a factual issue as to which this Court ordinarily would not grant certification. Since the case is before us, however, we have reviewed the entire record and conclude that, although the question may be debatable, the Township Committee's finding is supported by the record.

Plaintiff's tract is situated at the border of an R-15 zone (single-family residence). Like other properties similarly located, it abuts property zoned for other types of uses. To the south, immediately adjacent to plaintiff's property, there is...

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  • Elco v. R.C. Maxwell Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 15, 1996
    ...and purposes of the zone plan and zoning ordinance (the "negative criteria"). N.J.S.A. 40:55D-70(d); Cerdel Construction Co. v. East Hanover Tp., 86 N.J. 303, 307, 430 A.2d 925 (1981); Pieretti v. Mayor and Council of Bloomfield, 35 N.J. 382, 387, 173 A.2d 296 (1961); Nynex Mobile Communica......
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    • June 17, 1994
    ...603 A.2d 30. Furthermore, a trial judge must give greater deference to a variance denial than to a grant. Cerdel Constr. Co. v. Township Comm., 86 N.J. 303, 307, 430 A.2d 925 (1981). Thus, an applicant bears a heavy burden in overcoming a Nynex argues that its proposed use is inherently ben......
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    ...of economic hardship is not a purpose of zoning or by itself a special reason for a use variance. Cerdel Const. Co., Inc. v. East Hanover Tp., 86 N.J. 303, 307, 430 A.2d 925 (1981); Degnan v. Monetti, 210 N.J.Super. 174, 184, 509 A.2d 277 (App.Div.1986); Bern v. Fair Lawn, 65 N.J.Super. 435......
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