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Zoning Bulletin September 10, 2013 I Volume 7 1 Issue 17 <br />the conditions fixed by the zoning ordinance, the use "is reconcilable <br />with the municipality's legislative determination that the condition <br />should be imposed on all conditional uses in that zoning district" In <br />undertaking that analysis, the court explained, the weighing is entirely <br />different from that demanded for a use variance because the governing <br />body has not declared that the use is prohibited but, instead, has elected <br />to permit the use in accordance with certain expressed conditions. Ac- <br />cordingly, the focus of the analysis is on the effect of noncompliance <br />with one of the conditions as it relates to the overall zone plan, said the <br />court. <br />In other words, said the court, a use variance "proceeds in the context <br />of a use that the governing body has prohibited, whereas [a conditional <br />use variance] proceeds in the context of a use that, if it complies with <br />certain conditions, is permitted." The court determined that were it to <br />require an enhanced standard of proofs for the negative criteria be ap- <br />plied in the conditional use context, the court would "effectively erase <br />the distinction that a conditional use creates." "Rather than recognizing <br />that the use is essentially permitted, albeit with conditions, [the court] <br />would be presuming that the use is prohibited unless the conditions are <br />met or are proven in accordance with the standards ordinarily required <br />to secure a use variance." <br />Thus, here, the court upheld the Zoning Board's conclusion that <br />New Vornado was not required to prove the negative criteria by an <br />enhanced quality of proofs. The court found that the Zoning Board <br />properly applied a standard that involved weighing the proofs as to the <br />negative criteria in order to determine whether, notwithstanding the <br />failure of one of the conditions, the proposal was reconcilable with the <br />zone. <br />See also: Coventry Square, Inc. v. Westwood Zoning Bd. of Adjust- <br />ment, 138 N.J. 285, 650 A.2d 340 (1994). <br />See also: Medici v. BPR Co., 1071V.1 1, 526 A.2d 109 (1987). <br />© 2013 Thomson Reuters <br />