Agenda - Planning Commission - 06/07/2007

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April 15, 2007 I Volume 1 I No.8 Variance-Competing business owner argues variance not necess'ary to develop the land Suggests downsizing project would relieve hardship Citation: Mystic Investors Associates v. Little Egg Harbor Tp. Zoning Bd. of Adjustment, 2007 WL 737768 (N.j. Super. Ct. App. Div. 2D07) NEW JERSEY (03/13/07)-]arat, Inc. owned undeveloped land in township of Little Egg Harbor. He wanted to develop a shopping cen- ter with a supermarket on his land, so he applied to the zoning board of adjustment for the necessary variances and waivers. Jarat presented its plans to the board, which included expert testi- mony from a professional planner. Jarat's land was considered a "split lot": 11 acres laid in a business zone and the remawing tract was a 1.3 acre parcel that laid in a residential zone. Jarat's plan called from creat- ing a 14,OOO-foot drainage retention basin on the tract that was in the residential zone. The tract was landlocked and oddly shaped. Jarat's expert witnessed claimed that t:he proposed location of the drainage basin would allow "natural topographic flow of runoff water and alleviate existing drainage problems" in the area. The basin would make use of an existing easement that connected 'to a storm water man- agement facility. However, localliJ.g a drainage basin for commercial use on land zoned for residential purposes required a variance. Mystic Investors Associates, which owned land containing an existing . supermarket directly across the street from the J arat's land, opposed the variance. A licensed planner testified on behalf of Mystic at the variance hearing, stating that-if Jarat reduced the dimensions of its planned su- permarket-there would be room for the drainage basin '[0 be located entirely in the business zone. 1.J. addition, Mystic argued that a smaller development would be more aesthetic and be more consistent with the charaner of the neighborhood. Ultimately, the board granted Jarat's variance request and other waiv- ers. Mystic appealed the decisions of the board, but the decisions were upheld. Mystic appealed to court. Decision: A.ffiJ.-med. . Generally, variances required a demonstration of both negative cri- teria-that granting the variance would not harm the public good or impair the purpose of the zoning ordinance or plan-and positive crite- ria-that there was a need for a variance to relieve an undue hardship caused by exislliJ.g zoning regulations or some characteristic intrinsic to the land. If these criteria did not exist and a board gramed a variance, the court could reverse the decision as arbitrary or capricious. Because the construction of a supermarket was not inherently ben- eficial-a condition under which the variance would have been justi- 11 175