Getting Use Variance Approval (a “D” Variance) is Tough.  This Case Explains Why

HNWReal Estate, Landlord/Tenant, and Zoning

d varianceBackground and Facts of the Case

In this zoning law case, the plaintiff owned a shopping center located in the Community Commercial Zoning District (CC Zone).  In 2014, the local zoning board approved plaintiff’s plan to redevelop the Center, including permission for a coffee shop.  Plaintiff instead proposed opening a Dunkin’ Donuts with a drive-through; however, the CC Zone prohibits fast food restaurants, including drive-through food establishments.  Plaintiff, therefore, applied for a use variance and site plan approval.

The zoning board held hearings over the course of four (4) months.  Plaintiff’s representatives, and Dunkin’ Donuts’ representatives testified in support of the application.  Board members, who were familiar with local conditions, expressed concern about how the proposed drive-through would impact traffic.

The board denied the application on its conclusion that the drive-through would be an ineffective and unsafe egress from the shopping center for left turns between 7:00 am and 9:00 am.  It relied on Price Co. v. Zoning Board of Adjustment of Union, 279 N.J. Super. 327, 334 (Law Div. 1993) (stating that board members could reject expert testimony and rely on their own knowledge of traffic conditions), aff’d o.b., 279 N.J. Super. 207 (App. Div. 1994).

In upholding the denial, the Appellate Court stated that a local board’s decision “enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion.”  A court “should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law.

“A planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site.”

In considering whether to grant a use variance application, a zoning board has a right to consider existing traffic conditions and the impact that the proposed use would have on those conditions.  The board had a right to rely on “their own peculiar knowledge of traffic conditions” in rejecting the application for the use variance.

The board may also contemplate off-site traffic considerations when determining whether or not to grant a use variance application, and it can take steps to limit traffic into already congested areas.

To discuss your NJ zoning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Zoning Law Attorney

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