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In a ruling that should make it easier to squeeze more housing into tight spaces, a New Jersey appeals court says that density variances shouldn’t be subjected to the same scrutiny as variances seeking to change a property’s use. A density-variance applicant need only show that the proposed use is consistent with the surrounding area and address mitigation of negative impacts, the court ruled in Grubbs v. Rahway Zoning Board of Adjustment , A-4196-05. The ruling keeps alive William and Deborah Grubbs’ efforts to divide their 14,117 square-foot property � zoned for single-family residences on 5,000-square-foot-minimum lots � into three non-conforming parcels, each with a house. The Rahway zoning board denied their density variance but Union County Superior Court Judge John Pisansky vacated the denial, finding the board lacked jurisdiction. The board appealed. The appeals panel found the case was properly before the zoning board but said the board applied an incorrect standard under the Municipal Land Use Law. The board followed the standard for commercial use variances set forth in Medici v. BPR Co., 107 N.J. 1 (1987), namely that the applicant show special reasons why the proposed site is particularly suited to the use in question, such as a lack of suitable sites elsewhere. The board specifically rejected the more relaxed standards imposed for conditional use variances in Coventry Square Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994) and Randolph Town Center v. Twp. of Randolph, 324 N.J. Super. 412 (App. Div. 1999). Those cases had never been applied to density variance cases, the board said. Appellate Division Judges Edwin Stern, Donald Collester Jr. and Carmen Messano held that the more relaxed standard � consistency of proposed use with the surrounding area � should apply. “A density variance seeks a departure from certain regulations applicable to a use the municipality has chosen to permit, not prohibit, in the zone,” the judges said, remanding for a new hearing. Monday’s ruling will come as relief to lawyers who criticized the Mediciruling as too strict when it came down in 1987, says Richard Hluchan, a land use lawyer at Ballard Spahr in Voorhees. Density variances were “virtually impossible” to obtain under the, Medici-based standard, adds Lloyd Tubman, of Archer & Greiner in Flemington. The applicants’ attorney, John DeNoia, a solo in Woodbridge, said he felt confident his client would prevail at the zoning board under the relaxed standard. The attorney for Rahway, Cory Gray of Greenberg Traurig in Florham Park, said he did not expect his client to appeal.

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