New Jersey Land Use Law

Defendant Strategic Capital Partners had applied to the Union City Zoning Board for a density variance to construct an eighteen-story high-rise residential building consisting of ninety units. Strategic’s property was located in the Multi-Family Residential Zone (R-MF) and the Steep Slope Overlay Zone (SSOD). The Zoning Ordinance restricts the project to a maximum density of thirty units, but allows high-rise structures. The Zoning Ordinance also contains a provision that states: “Notwithstanding the foregoing, the Planning Board or Board of Adjustment shall not have jurisdiction to grant density greater than that permitted [in the SSOD zone].

After Strategic was granted its density variance pursuant to N.J.S.A. 40:55-70(d)(5) of the Municipal Land Use Law, an objector to the project, Larry Price, filed suit challenging the Zoning Board’s authority to grant a variance, and alleged that the substantial increase in density amounted to a rezoning, which must be granted only by the City and not the Zoning Board. The Appellate Division upheld the trial courts determination that the provision of the Zoning Ordinance which prohibited the Zoning Board from hearing a density variance was invalid. The MLUL specifically grants a municipal zoning board the authority to issue a variance to permit an increase in the permitted density in a specific zone. The powers of a municipal land use board stem directly from the MLUL, which the Court reiterated “may not in anyway be circumscribed, altered or extended by the municipal governing body.”

Although the Court determined that the Zoning Board acted within its authority when granting the variance, it remanded the matter back to the Zoning Board for additional findings of fact. The Court took specific issue with the Zoning Board’s approval of the project’s density that was three times that which is permitted in the zone. The opinion pointed out that a zoning board is not permitted to correct deficiencies in a zone plan by issuing variances because such actions would “be tantamount to an usurpation of the legislative power” to amend and revise zone plans. The Appellate Division drew a line in the sand by stating that “[i]n our view, a variance that permits the construction of a building with treble the permitted density … has strayed into the forbidden area, absent a compelling explanation to the contrary.”

This is the first time that a court has drawn such a line as to when an variance to allow an increase in density goes so far as to constitute a rezoning of property. The Court emphasized that prior cases have upheld variances that have permitted “a minimal increase in density,” but that a variance allowing a project with treble density hardly meets that standard.