Wednesday, May 20, 2009

Too many businesses … of your kind, that is …

  The fundamental purpose of the “variance” in land use law is to provide an outlet when the zoning does not make sense for a particular parcel.  Zoning is inherently a blunt instrument, and simply drawing zones on a map may not address the peculiarities of a particular parcel.  It makes sense that a variance should not be so extreme that it conflicts with the basic idea behind the zoning – it would be extreme, for example, to allow a variance for oil refinery in a residential neighborhood.  But many land use ordinances go beyond this, to require broadly that the requested use variance meet some sort of “the public interest.”  This requirement, which in practice allows governments wide discretion in second-guessing the specifics of landowner plans, seems to be to be contrary to the thrust of zoning laws, in which government regulation is limited to categorical restrictions.
Hand    An interesting example is a case decided this week by a New Jersey appellate court, concerning a variance application in Roseland, a suburb in Essex County.  (The case is Seung Chang v. Board of Adjustment, No. A-5248-07T3, 2009 Westlaw 1361677 (N.J. Super. Ct. App. Div. May 18, 2009).)   The applicant leased part of a one-acre parcel in an area zoned for townhouses and garden apartments.  But the zoning ordinance requires, as stated by the court, “a five-acre minimum lot size for townhouses and a nine-acre minimum lot size for garden apartments.”  (I assume that this prohibits three-unit townhouse clusters.)  The applicant wanted to open a nail salon in a building that had previously been used as a fuel oil company.  The land across the street was zoned for businesses.
   The court affirmed the decision of the borough’s zoning board to deny the variance.  The application didn’t meet New Jersey’s “public good” requirement for a variance because, the board concluded in large part, there were two other nail salons nearby and the applicant could have opened up a nail salon elsewhere in the borough.
   This kind of thinking goes against a wise conception of the variance, in my opinion.  It would be one thing to conclude that a small business would be incompatible with the residential zoning of the area.  But it’s another thing for the government to tell the applicant that there are too many nail solons in the area, while another business that would have an identical land use impact (perhaps a hair salon?) would be acceptable.  This kind of decision is subject to abuse and leaves the zoning authorities in the position of going beyond land use regulation and unwisely regulating competition …  

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