Agenda - Planning Commission - 10/03/2013

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Variance — Opponent challenges grant of conditional use variance Zoning Bulletin September 10, 2013 1 Volume 7 1 Issue 17 Opponent contends zoning board erred by not requiring applicant to prove the negative criteria by "the enhanced quality of proofs" Citation: TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 2013 WL 3802499 (N.J. 2013) NEW JERSEY (07/23/13) —This case addressed the issue of whether, in considering an application for a conditional use variance (N.J.S.A. 40:55D- 70(d)(3)), the applicant must prove the negative criteria by an enhanced quality of proofs. The Background /Facts: New Vornado /Saddle Brook, LLC ( "New Vornado ") owned a large tract of land in East Brunswick, New Jersey (the "Town "). The site was improved with a large shopping center that included a home improvement store, a variety of retail establishments, and one vacant free - standing building. New Vornado sought to convert the vacant building into an LA Fitness health club. Under the Town's zoning ordinance for -profit health club facilities were a conditional use. Thus, the proposed LA Fitness facility had to comply with the relevant conditions established in the zoning ordi- nance, including a condition that prohibited such a facility from being located within 500 feet of any residence or residential zone. Because New Vornado's property was within 500 feet of residences, New Vornado filed an application seeking a conditional use variance to en- able it to open the LA Fitness facility. Ultimately, the Town's Zoning Board granted New Vornado's ap- plication for a conditional use variance. TSI East Brunswick, LLC ( "TSI ") was the owner and operator of a New York Sports Club, a for -profit health club that was located in a shopping center across the street from New Vornado's property. After the conditional use variance was granted to New Vornado, TSI com- menced a legal action. TSI asserted that the Zoning Board's conclu- sions were flawed. Among other things, TSI argued that New Vornado's application should have been tested against the standards applicable to a use variance, rather than in accordance with those applicable to a conditional use variance. TSI said this was because the condition re- lated to the 500 -foot distance effectively prohibited New Vornado from putting the fitness club in its chosen location. TSI also contended that the Zoning Board had erred by not requiring New Vornado to prove the negative criteria by "the enhanced quality of proofs." © 2013 Thomson Reuters 5