Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”


In Ten Stary Dom Partnership v. T. Brent Mauro, Docket No. A-1083-10T2, the Appellate Division found that the Board’s denial was “arbitrary and unreasonable in light of the Board’s emphasis on deficiencies in Mauro’s drainage plan.”  The Appellate Division emphasized that the Applicant’s role in his bulk variance application was simply to satisfy the positive and negative criteria associated with the bulk variance.  The Appellate Division found that the Applicant had addressed the positive criteria, with a demonstration that the irregular shape of the property necessitated a bulk variance, that undue hardship would result without the variance, as the property would become useless.  Further, the Applicant had  satisfied the negative criteria, with testimony from the fire department addressing the emergency access issues created by the limited lot frontage.

The Appellate Division noted that the drainage issues, at the center of the Board’s denial, are “generally [issues] relevant to obtaining a site plan approval rather than a zoning variance” and found that the Applicant “had no obligation to convince the Board that a [drainage] plan existed at the time of the bulk variance approval.”  The Board’s skepticism that such a plan could be generated, and subsequent denial of the bulk variance application based upon the Applicant’s failure to address this anticipatory issue was “unreasonably speculative to consider… when denying his requested variance.”  Finding that the Board should have limited its consideration to only the bulk variance criteria, the Appellate Division rejected the Board’s denial and remanded the application.  Here’s hoping the third time’s the charm.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s