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Commons v. Westwood Zoning Board Of Adjustment

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Commons v. Westwood Zoning Board Of Adjustment, Supreme Court of NJ, 1980 When should a variance be granted when the size of a lot does not meet the zoning ordinance requirements? Issue Reasoning
self-imposed: Did the owner of a conforming lot convey away a portion of that lot leaving herself with a nonconforming lot? Compliance: – the owner could have offered to buy additional properties from the neighbors; – the owner could have offered to sell some of the land (or all of the land) to the neighbors. – “If . . . an owner is willing to sell at a „fair and reasonable‟ price and the adjoining property owners refuse to make a reasonable offer, the „undue hardship‟ would exist.” On the negative criteria: the board just stated conclusions not supported by facts. The board must state the basis for its conclusions. • Not clear whether board had a problem with size or appearance of home But ∏ contributed to the problem: no detailed plans submitted.

Rule
variance must be granted where • undue hardship  no effective use can be made of the property in the event the variance is denied  owner is not entitled to have his property zoned for its most profitable use  When the regulation renders the property unusable for any purpose, the analysis calls for further inquiries which may lead to a conclusion that the property owner would suffer an undue hardship  Look into whether  the hardship must not be selfimposed  owner attempted to bring the lot into compliance or end the unusability • negative criteria satisfied  The variance cannot be issued if it would  Be contrary to the public interest  Impinge upon the intent and purpose of the zone plan If the denial of the variance will zone the property into inutility, an exercise of eminent domain will be called for and compensation must be paid. There must a statement of specific findings of fact on which the Board reached its conclusions. Determining Price: on the assumption that the variance has been granted” so that a home can be constructed Size by itself would not justify denial. No health or safety goals • If character of neighborhood affected (aesthetics and value), denial may be appropriate. • • • o o • •

Facts
Lot was owned by O and predecessor since 1927 zoning ordinance adopted in 1933 Min frontage and area provisions added in 1947 O tried to sell to neighbor – big diff between ask and offer prices O was a successful in buying an additional stip of land ∏, a builder, contracted to buy the lot on the condition that he be permitted to construct a single-family residence on it. Builder planned to build a home – worth $55K (homes in area are [$45K - $60K] – Submitted a plan for a larger home that he planned to scale down. – Submitted no detailed architectural plans of the house to be built. A variance was applied for to permit him to do that. The request was for a variance from the – Area requirement - min. of 7500 sq. ft. to build; lot is 5190 • Many home did not meet area req • 5190 is comparable to 17 other homes – Min frontage req: 75‟ req; lot 30‟ wide • In last 30 yrs, 2 homes built – one of them not meeting req. Neighbors opposed application of the variance – Aesthetically displeasing – concern about privacy. – Spillover effect and a noise and trespass – Garage would be in front

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Held Procedure

Remand so that record may be supplemented (board: size/appearance facts; ∏: detailed designs) – there is undue hardship The board denied the application: ∏ Failed to demonstrate any evidence to establish hardship. Granting of the variance would substantially impair the intent and purpose of the zone plan

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