Grubbs v. Slothower

On January 8, 2007, in the matter of Grubbs v. Slothower, the Appellate Division extended to applications for development seeking approval for density variances (building more units on land than may be allowed pursuant to local ordinance), “the relaxed standard of review” established for deviations from conditional use requirements in Coventry Square, Inc. v. Westwood Bd. of Adjustment, 138 N.J. 285 (1994). When considering such applications, the Court advised zoning boards of adjustment that an applicant need not prove that the property to be developed is particularly suitable for a more intense use, but rather must “[f]ocus their attention on whether the applicant’s proofs demonstrate ‘that the site will accommodate the problems associated with a proposed use with [a greater density] than permitted by the ordinance.’” (internal citations omitted).

According to the Court, in order to meet the positive criteria required for the grant of variances under the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq.,

[a] successful applicant for a density variance therefore must show that despite the proposed increase in density above the zone’s restrictions, and, thus, the increased intensity in the use of the site, the project nonetheless served one or more of the purposes of zoning . . . [and] in addressing the so-called negative criteria, the applicant would need to demonstrate that the increase in density would not have a more detrimental affect [sic.] on the neighborhood than construction of the project in a manner consistent with the zone’s restrictions.

By this case, the courts have now expanded the “relaxed” standard of review to all “d” variances that do not establish or expand non-permitted uses/structures. Such use variances remain subject to a more stringent standard of review, and, in applications for commercial development, an enhanced quality of proof. The Appellate Division’s decision in Grubbs v. Slothower may be viewed on WestLaw at 2007 WL 35245 (N.J.Super. A.D.) and has been approved for publication.

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