holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land- use agency's broad discretion
How later courts described this case
- holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land- use agency's broad discretion
- holding that the record does not have to compel the grant of a variance for the Planning Board to grant a variation within their discretion
- noting that shallowness of lot created need for rear-yard setback variance
- exercising original jurisdiction to “conclude the matter”
Written by the judges who cited it.
The opinion
*531 STEIN, J.,
concurring.
I join in the judgment of the Court and in Justice Pollock’s thoughtful and comprehensive opinion. I write separately in an effort to overcome the lingering misconception that proof of hardship necessary to support a dimensional variance under N.J.S.A. 40:55D-70c(1) requires evidence that without the variance the property would be zoned into inutility. That variant of hardship typically has been advanced to support use variances. See Medici v. BPR Co., 107 N.J. 1 , 17 n. 9, 526 A.2d 109 (1987). Prior to the 1948 amendments to the land-use statutes, L. 1948, c. 305, no use variance could be granted without a finding of undue hardship, consisting of proof that the property is not reasonably adapted to a conforming use. See Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 76-77 , 87 A. 2d 9 (1952); Brandon v. Board of Commissioners, 124 N.J.L. 135, 149 , 11 A.2d 304 (Sup.Ct.), aff'd, 125 N.J.L. 367 , 15 A.2d 598 (E. & A. 1940). Confusion about the type of hardship necessary to sustain a dimensional variance readily can be traced to the period in which use variances were cognizable under both subsections c and d of the variance provision in the land-use law. See Commercial Realty & Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 554-57 , 585 A.2d 928 (1991) (“Thus, the anomalous state of affairs after the 1948 amendment to N.J.S.A. 40:55-39 was that boards of adjustment could grant use variances under subsection c based on proof of undue hardship, and could recommend the grant of use variances to the governing body under subsection d based on proof of special reasons, a standard that could but need not be satisfied by proof of hardship.” Id. at 555 , 585 A.2d 928 .). The overlapping jurisdiction of subsections c and d over use variances was resolved in 1953 by an amendment prohibiting the grant of use variances under subsection c. L. 1953, c. 288. Nevertheless, as evidenced by the initial Appellate Division decision in this matter, courts and practitioners continue to assume that the proof of hardship necessary to sustain a dimensional vari *532 anee is identical to the evidence of hardship that may be advanced to support a use variance.
As reflected by the record in this case, that higher standard of proof would be inapplicable in dimensional-variance applications because in such cases the use ordinarily conforms to the ordinance. Hence, Gash would have been unable to establish that his property could not be put to a conforming use without the grant of a variance. The appropriate context in which hardship is to be considered in dimensional-variance cases focuses on whether strict enforcement of a dimensional restriction, taking into account the property’s exceptional conditions (including its exceptional “narrowness, shallowness or shape”), would result in undue hardship based on limitations on the development of the property attributable to such conditions. See North Bergen Action Group v. North Bergen Township Planning Board, 122 N.J. 567 , 577 n. 3, 585 A.2d 939 (1991). I join in the majority’s conclusion that “the physical characteristics of [this] lot” presented a sufficient basis on which the planning board could make a finding of hardship necessary to support a c(1) variance.