Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kenwood Associates v. Board of Adjustment

Decided: March 31, 1976.

KENWOOD ASSOCIATES, A PARTNERSHIP OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE CITY OF ENGLEWOOD, THE CITY OF ENGLEWOOD, AND MAX PRIEGEL, CHIEF BUILDING INSPECTOR OF THE CITY OF ENGLEWOOD, DEFENDANTS-APPELLANTS



Lynch, Larner and Horn.

Per Curiam

Kenwood Associates applied to the Board of Adjustment of the City of Englewood for a "special reasons" variance under N.J.S.A. 40:55-39(d) in order to construct an office building and parking lot in a district zoned for one-family dwellings. After a full hearing the board denied the application in a resolution which concluded that the applicant had "failed to prove the existence of special reasons within the meaning of N.J.S.A. 40:55-39(d)." In addition, the Board found that the variance "cannot be granted without substantial impairment of the intent and purpose of the zoning ordinance and the zone plan and without substantial detriment to the public good."

In an action in lieu of prerogative writs the Law Division judge reversed the denial by the board and ordered that the variance be granted. In an oral opinion, after reviewing

the procedural background of the case and the respective contentions of the parties, the judge found that "based upon the general overall picture of this area it is the opinion of the court that the action of the board was arbitrary, capricious and unreasonable, and therefore, I will reverse the board and grant the [relief] sought in the plaintiff's complaint." There is no articulation as to how or why the action of the board was "arbitrary, capricious and unreasonable."

After a careful review of the entire record we find that the judge's determination was manifestly erroneous and must be reversed.

Preliminarily we observe that a trial judge in a non-jury case has the duty to set forth fully his findings and reasons, factual and legal, for reaching his decision. R. 1:7-4; Conford, "Findings of Facts and Conclusions of Law," 92 N.J.L.J. 225 (1969). Mere conclusory terminology such as utilized by the trial judge does not suffice. Such perfunctory treatment constitutes a disservice to the litigants, the attorneys and the appellate court.

It has been emphasized over and over again in the many cases on the subject that the role of a judge in reviewing a local variance determination is solely to ascertain whether the action of the board is arbitrary. He cannot substitute his own judgment for that of the municipal board invested with the power and duty to pass upon the application. Stolz v. Ellenstein , 7 N.J. 291 (1951); Peoples Trust Co., etc. v. Hasbrouck Heights, etc. , 60 N.J. Super. 569 (App. Div. 1959).

The action of the board is presumed to be valid. Rexon v. Haddonfield Bd. of Adj. , 10 N.J. 1, 7 (1952); Bove v. Emerson Bd. of Adj. , 100 N.J. Super. 95, 101 (App. Div. 1968). And particularly where the board has denied a variance, plaintiff has the heavy burden of establishing that the evidence is so overwhelming in support of the variance that the board's action can be said to be arbitrary and capricious. Rexon v. Haddonfield Bd. of Adj., supra;

Ring v. Rutherford Mayor and Council , 110 N.J. Super. 441 (App. Div.), certif. den. 57 N.J. 125 (1970), cert. den. 401 U.S. 911, 91 S. Ct. 876, 27 L. Ed. 2d 810 (1971). See Cummins v. Leonia Bd. of Adj. , 39 N.J. Super. 452, 460 (App. Div. 1956.)

In this connection it should be noted that the absence of evidence in support of the denial does not in itself mean that the board's determination is arbitrary. Since the burden rests with the applicant to establish the criteria for the grant of the variance, it must demonstrate that the affirmative evidence in the record dictates the conclusion that the denial was arbitrary.

The record before the board amply supports the denial because of the applicant's failure to establish the statutory prerequisite of "special reasons." The essence of the owner's position was and is that it is more economically feasible to construct and operate an office building on the site than to develop the same with residences. Mortgage money would be more readily available to finance the proposed project, whereas difficulty was encountered in financing residential development. In addition, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.