When will a zoning use variance, if granted, have so significant an impact upon a municipal development plan that it is beyond the jurisdiction of a board of adjustment and requires a plan amendment? In Dover Tp. v. Dover Tp. Bd. of Adjustment, 158 N.J. Super. 401 (App.Div.1978), the Appellate Division established criteria to be applied when addressing that question. This opinion considers the Dover issue and, after adding criteria, orders a remand for further consideration of the jurisdictional question by defendant board.
National Automobile Salvage Service ("NASS') now operates a business on a 6.7-acre lot in Delran Township, Burlington County, New Jersey. The business consists of the towing and storage of vehicles, damaged and undamaged, which are displayed to prospective buyers. NASS has acquired a second lot
containing 8.146 acres, near, but not adjacent to, its 6.7-acre lot, to which it wishes to expand its business. Both lots are in the same zone district. The proposed use is not permitted by the current regulations. Consequently, NASS applied to the Delran Township Board of Adjustment for what it described as "an expansion of a non-conforming use.' In fact, correctly described, the application requested a variance. The request was denied on the ground that the impact of the proposed use upon the municipal zone plan was so great that it could be permitted only by the governing body through an amendment to the municipal development ordinance. The denial is challenged by this action in lieu of prerogative writs, submitted for decision on the basis of the record made below, briefs and oral argument.
The record indicates that the usable portion of the 8.146-acre lot, by reason of its shape and the existence of wetlands and woodlands, is only about 3 acres -- all the applicant intends to use. It is situated on the outskirts of the municipality and the zone district within close proximity to an automobile body shop, a cemetery, a large industrial site and a 25-acre "Green Acres' tract. While the lot and the surrounding area are zoned for residential uses, such uses are modest and no residential development is in progress. There is no real prospect of residential use in the near future, partly because Delran has no sewer capacity with which to accommodate such uses. The proposed use will not involve the construction of any buildings.
It is of some moment that Delran has not completed a "general reexamination of its master plan and development regulations' on or before August 1, 1988, as required by N.J.S.A. 40:55D-89 and -89.1, a failure which the statute provides "shall constitute a rebuttable presumption that the municipal development regulations are no longer reasonable.'
The board's denial of the requested variance was based upon its denial of jurisdiction. Its resolution of denial set forth the following, and only the following, as its conclusion:
Due to the size of the lot in relation to the size of the overall zone, the application constitutes a rezoning for which the Zoning Board of Adjustment does not have jurisdiction.
Lot size is a jurisdictional consideration. Standing alone, however, it is not enough to support the board's conclusion. All criteria listed in Dover, plus any others rationally applicable in a given situation, must be considered.
Dover did not restrict the jurisdictional inquiry to particular criteria. It said:
The basic inquiry in each case must be whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance. That inquiry requires analysis and evaluation of such factors as the size of the tract itself; the size of the tract in relationship to the size and character both of the district in which it is located and the municipality as a whole; the number of parcels into which it is anticipated that the tract will be subdivided if subdivision is part of the ...