Judge Rules Zoning Board May Grant Variances from Redevelopment Plan

by Jong Sook Nee on March 25, 2015

On February 3, 2015, the Honorable Mary Jacobson, sitting in the Law Division in Mercer County, ruled that the West Windsor Zoning Board of Adjustment may grant variances, pursuant to the Municipal Land Use Law (MLUL), from the Princeton Junction Redevelopment Plan (PJRP) in Pereira Investment Corp. v. West Windsor Township Zoning Board of Adjustment, et al (Not yet approved for publication. The PJRP, which governs the area surrounding the Princeton Junction Train Station in West Windsor Township, supersedes the underlying zoning for that area. Many in the redevelopment community have long believed that a zoning board’s role in redevelopment was limited to areas governed by redevelopment plans that constitute overlay zoning. Many believed, however, that a zoning board could not grant such variances from redevelopment plans that supersede underlying zoning. The latter reading is consistent with the provision in the Local Redevelopment and Housing Law (LRHL) that “[a]ll applications for . . . redevelopment . . . shall be submitted to the municipal planning board for its review and approval in accordance with the [MLUL].” N.J.S.A. 40A:12A-13 (emphasis added). It is further supported by the decision in Weeden v. City Council of the City of Trenton, 391 N.J. Super. 214 (App. Div. 2007), wherein the court held that a zoning board could grant variances from a redevelopment plan. In so holding, however, the court specifically noted, several times, that the redevelopment plan at issue was an overlay plan.

 

As noted above, the PJRP supersedes the underlying zoning in the area covered by the plan. Moreover, the PJRP provides that, in the event a development proposal requires deviations from the plan, it is expected that “findings derived from that process” will be presented to the Township’s governing body in the form of recommendations for possible revisions to the PJRP. Nevertheless, the court found that such language could not have meant that the Zoning Board had no role in the redevelopment process, as that result would be contrary to the role envisioned for zoning boards in the MLUL. The court also found that the Township did not intend to preclude the zoning board from considering variances from the PJRP. Otherwise it would have specifically set forth that restriction. The court found that the above-referenced language regarding deviations was contained in a preamble to the PJRP, rather than the body of the plan. The court also compared such language in the PJRP to similar language set forth in a redevelopment plan in the neighboring Township of Plainsboro. The court found, in contrast to the language in the Plainsboro Redevelopment Plan, that the PJRP did not specifically restrict the Zoning Board’s ability to consider variance applications. Thus, the court took the position that the location of the restrictive provision and its relative lack of specificity were significant.

 

Finally, from a substantive standpoint, the court also found that the applicant’s property was only a small part of the Princeton Junction Redevelopment Area, and that the relief requested by the applicant was relatively minor and had no real impact on the surrounding parts of the redevelopment area. According to the court, the variances, therefore, had a very limited impact on the PRJP.

 

Further clarification of the court’s decision is warranted. The court’s ruling both implies that the MLUL contemplates a role for a zoning board in the redevelopment process and that a municipality could nevertheless limit or even exclude a zoning board from such process with more specific prohibitive language. Perhaps the courts or the Legislature will reconcile those two apparently conflicting holdings. On March 18, 2015, the Plaintiff filed a Notice of Appeal, so perhaps the Appellate Division will reconcile these two apparently conflicting holdings

 

 

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