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Kaufmann v. Planning Board for Township of Warren

Decided: June 21, 1988.


On certification the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For affirmance -- None. The opinion of the Court was delivered by O'Hern, Justice.


[110 NJ Page 553] This is the first time that we have addressed the provisions of N.J.S.A. 40:55D-70c(2), a variance provision added to the Municipal Land Use Law (MLUL) by the comprehensive amendments of L. 1984, c. 20 (hereafter the c(2) variance). The provision allows a variance for certain dimensional requirements when the purposes of the MLUL would be advanced, the benefits of the deviation would substantially outweigh any detriment, and the relief can be granted without substantial detriment to the public good and without substantial impairment of the zone plan. In this case a planning board granted a variance for a two-lot minor subdivision with conforming (indeed, excess) lot area but with a deviation from road frontage on the lots and a minor side-yard deviation to accommodate a garage existing on the proposed new lot. We hold that this variance is justified by the new authority vested in zoning and planning boards under the MLUL to grant such dimensional variances without a showing of hardship. Accordingly, we reverse the judgment below invalidating the municipal approval.


This is an action in lieu of prerogative writs brought under Rule 4:69 challenging the Township of Warren Planning Board's granting of a c(2) variance pursuant to N.J.S.A. 40:55D-70c(2).

Defendants Douglas and Mary Lou Otte own Lot 8, Block 621 as set forth on the Warren Township Tax Map. Their lot has 167.48 feet of frontage on Hillcrest Road and an average depth of 392 feet, and covers approximately 1.59 acres or 65,000 square feet to the center line of Hillcrest Road. The property is in the R-20 residential zone, which requires a minimum lot area of 20,000 square feet, a minimum lot width of 100 feet, and a minimum side yard of twenty feet. Their residence is in the southwestern corner of the lot, with a detached frame garage and a circular above-ground swimming pool nearby. The plaintiffs, Richard and Laura Kaufmann, own Lot 13B in Block 621, a single-family property adjoining the Ottes to the east. They share a common rear line.

The Ottes initially filed an application in 1984 with the Warren Township Planning Board to subdivide their property into two lots, each of which was to be used as a site for a one-family house. That application proposed a "flag lot" configuration; one conforming lot would have had 142.4 feet of frontage on Hillcrest Road, and another lot, partially located behind the first, would have had a frontage of only 25.08 feet on the road. The plaintiffs and other neighbors objected to the Ottes' initial application, complaining of the visual impact of one lot being developed behind the other. The Planning Board denied the variance.

In response, the Ottes submitted to the Planning Board a revised subdivision plan proposing two nonconforming lots, each with a width or frontage of 83.74 feet. Each of the parcels would conform to the lot area requirement: one lot would be comprised of 20,000 square feet; the other parcel would contain 41,445 square feet and include the Ottes' new

residence together with the existing frame garage, which would be located fifteen feet from the proposed new sideline. The Ottes were to retain ownership of both parcels, but planned to rent the original lot and existing house. The original lot would also be given an easement to use the garage on the Ottes' new and larger lot. The adjacent swimming pool on the larger lot would be removed. The objectors contended that the revised application would create the identical visual impact of the "flag lot" that was previously denied: one property being developed behind the other.

The Ottes' proofs were that the surrounding neighborhood consists of a mix of older and newer residential homes with the vast majority of lots having frontage widths of less than 100 feet. When the Ottes bought their home in 1972, the east side of Hillcrest Road was zoned for 1.5-acre lots, the size of their lot. Subsequently, in the early 1980s, the Township reduced the minimum lot size on the easterly side of Hillcrest Road to 20,000 square feet, thus providing and planning for more intense use of the land. A number of the properties in the neighborhood are "flag lots" with access to Hillcrest Road either by easement over, or deed of, a portion of another lot having a frontage width of less than the required 100 feet. Fifteen homes in the neighborhood are located on lots having less than eighty-five feet in frontage width. The properties located to the north and south of the Ottes' lot each contain two residences despite the fact that those lots are not subdivided and have insufficient frontage to obtain subdivision approval without obtaining variances. A few lots in the neighborhood have frontage widths of as little as fifty feet. The evidence before the Planning Board revealed that the nonconforming lots on the west side of Hillcrest, at 1200 to 1800 feet, are substantially deeper than the Ottes' 392 feet.

The Ottes' variance application proceeded on two bases: the familiar c(1) or "hardship" standard, N.J.S.A. 40:55D-70c(1), and the newly enacted c(2) variance standard, N.J.S.A. 40:55D-70c(2). The Planning Board granted the Ottes' subdivision and

variance application by voice vote and thereafter entered a written resolution dated April 23, 1985. The Board found that the proposed lots would be similar in character to the other lots in the area; that the Ottes' lot was much larger and wider than those; and that because of the physical features of the Ottes' lot a strict application of the dimension requirement would result in "peculiar and exceptional practical difficulty to the applicant," or a c(1) "hardship." In addition, the Board examined the purposes of zoning as set forth in N.J.S.A. 40:55D-2(a), to guide use or development of lands to promote general welfare; (e), to establish appropriate population densities; and (g), to provide sufficient space to meet public needs. It concluded that a variance under c(2) would advance these goals and that the benefit of this deviation would substantially outweigh any resulting harm or detriment. Because the remaining lots either were too small or were already subdivided, the Board foresaw no "domino effect" from its decision.

On plaintiffs' suit, the Law Division reversed the Planning Board and set aside the variance. It rejected the finding of c(1) "hardship," reasoning that the property was readily marketable as a one-family property and that the requirement that an owner use more land than the minimum does not constitute undue hardship. (In their petition of review before us, the defendants do not challenge the Law Division's ruling on c(1) hardship.) On the c(2) variance, the court held that since the purpose of area, width, and depth requirements is to preserve the essential residential character of the community by preventing overcrowding and undue concentration of population, a deviation from those standards could not be said to advance the purposes of zoning, and that in any event there was no showing that any benefit would substantially outweigh the detriment. In an unpublished per curiam opinion the Appellate Division affirmed, substantially for the reasons expressed by the trial court. We granted certification to review the petitions of the applicant and the Planning Board. 108 N.J. 580 (1987).

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