Weeden v. City Council of Trenton
Zoning Boards Have Jurisdiction to Grant Variances from Redevelopment Plan
(at Least when the Plan Constitutes Overlay Zoning)

In Weeden v. City Council of Trenton, recently approved for publication, the Appellate Division evaluated whether a zoning board of adjustment (“ZBA”) has jurisdiction to grant variances from a redevelopment plan that serves as an overlay to existing zoning.  The Court answered this question in the affirmative based upon, but apparently not limited to, the unique set of circumstances involved in the case.

Specifically, an applicant interested in constructing a combined fast food restaurant with drive-thru on property located within a redevelopment overlay zone, made application to the local ZBA for a use variance from an express prohibition in the redevelopment plan for drive-thru operations.  After the ZBA approved the application, an objector filed an appeal with the municipal governing body, which affirmed the ZBA’s grant of the use variance.  The original objector, along with others, then filed a complaint in lieu of prerogative writs alleging that the ZBA had no authority to grant a use variance and that, even if it did, the grant of a use variance in this case was otherwise arbitrary and capricious.  The complaint also challenged City Council’s decision affirming the ZBA’s grant of a use variance.  The trial court ruled that the ZBA, indeed, had jurisdiction to grant variances from the redevelopment plan, but remanded the matter to City Council due to that body’s failure to conduct a de novo review of the ZBA’s decision, and retained jurisdiction.  Upon remand, City Council reaffirmed its initial decision.  The parties provided dueling certifications addressing allegations that the grant of the use variance was based upon political considerations rather than substantial credible evidence.  Rather than permitting discovery and/or having additional hearings on this issue, which might be extensive and time-consuming, the trial court proceeded simply to evaluate the merits of the use variance application and decide the matter.

Although several issues were discussed and decided on appeal, the Court’s ruling on the jurisdictional question is the most significant, as it is one of first impression in this state.  Specifically, the Appellate Division held that although the Local Redevelopment and Housing Law (“LRHL”) does not address whether a ZBA may grant variances from the requirements of a redevelopment plan constituting overlay zoning, such authority is consistent with its power to grant variances under the Municipal Land Use Law (“MLUL”).  The Court then went on to adopt an opinion on this issue offered in the legal treatise New Jersey Zoning and Land Use Administration, and cautioned that if the objectors’ view were to prevail, “[p]roperty owners would be unable to obtain even the most minor exception to the requirements of a redevelopment plan without applying to the governing body for a plan amendment. . . . Nothing in the LRHL or its stated purpose suggests that the Legislature intended to impose such a cumbersome, impractical, and potentially unconstitutional requirement.”

In our opinion, the case is more significant for one of the issues it did not decide, that being whether a ZBA has jurisdiction to grant variances when a municipality adopts a redevelopment plan that supercedes the underlying zoning for the redevelopment area, and amends its zoning district map accordingly, pursuant to the LRHL.  The Court strictly limited its holding.  The Appellate Division noted that it was not addressing whether a ZBA had authority to grant variances from a redevelopment plan where a redeveloper has “covenanted with a municipality to carry out the redevelopment plan,” or where a redevelopment plan “required that all redevelopment be conducted by a designated redeveloper or with the redevelopers prior approval.”  Apparently, we will have to wait for further clarification and when that comes, whether it be through additional case decisions or legislative action, we will keep you posted.