New Jersey Law

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NJ Appellate Court Confirms That Self-Created Hardships Cannot Support a Hardship Variance from Zoning Standards

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In Yu v. Toms River Planning Bd., a recent unreported decision of the Appellate Division, the plaintiff appealed from a Law Division judgment affirming the Toms River Planning Board’s approval of an application for a minor subdivision with bulk variances wherein the applicant sought a hardship variance from conditions created from their prior subdivision. The applicant’s properties were originally part of a single, seven-acre irregularly shaped parcel of land. The seven-acre parcel was subdivided several years prior into two lots; one conforming square- shaped lot, and one irregularly shaped non-confirming lot making up the remainder. In 2014, the applicant applied to the Toms River Planning Board for a minor subdivision with bulk variances to create a building lot from their two existing lots. The minor subdivision would create a new non-conforming lot. The applicants sought a hardship variance under N.J.S.A. 40:55d-70(c) claiming that it was the property’s unique shape and existing structures that required the variance. The applicants did not inform the Planning Board that the property’s unique shape resulted from the applicant’s subdivision from years earlier. The Planning Board voted unanimously to grant the application without any discussion of self-created hardship. The Plaintiff thereafter filed an action in lieu of prerogative writs claiming that the applicant had not demonstrated a hardship.

The Appellate Division held that a land use application seeking a “hardship variance” under N.J.S.A. 40:55D-70(c)(1) must be denied if the applicant or the applicant’s predecessor in title, has by some affirmative act brought an otherwise conforming parcel into non-conformity. In other words, an applicant cannot claim a hardship if they previously created the very hardship for which they are seeking relief. The Court reasoned that the availability of a hardship variance depends on how the hardship is created and that if an applicant, or its predecessors in title, has brought an otherwise conforming property into non-conformity, (effectively making the hardship one of the applicant’s own making) the relief should be denied. The Court reasoned that because the applicants took affirmative steps to create the non-conformity by previously subdividing their property, they could not claim a hardship. The decision of the trial court was, therefore reversed. This decisions reminds parties that a self-created hardship cannot be the basis for obtaining a variance based upon a claim of hardship.

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