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Bressman v. Gash

Decided: March 30, 1993.


On certification to Superior Court, Appellate Division.

Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein


The opinion of the court was delivered by


This case requires that we determine whether the changes in a second application for a bulk variance under N.J.S.A. 40:55D-70c suffice to avoid the bar of res judicata that arises from the judicial reversal of an earlier grant of the variance. The Edison Township Zoning Board of Adjustment (the Board of Adjustment) granted a rear-yard-setback variance to defendant Richard Gash. The Law Division affirmed the grant of the variance, but the Appellate Division reversed. Gash's second application contained changes that the Edison Township Planning Board (the Planning Board) found sufficient to preclude application of res judicata. The Law Division held that res judicata barred the Planning Board from considering the application on the merits. In an unreported decision, the Appellate Division affirmed a judgment of the Law Division that reversed the Planning Board's decision. We granted Gash's petition for certification, 130 N.J. 14 (1992), and now find that the Planning Board was not arbitrary, capricious, or unreasonable in determining that the second application differed sufficiently from the first to justify considering it on the merits. We reverse the judgment of the Appellate Division, and remand the matter to the Law Division for entry of an order granting the variance.


In 1987, Gash applied to the Board of Adjustment for a rear-yard variance to construct a 3,870-square-foot single-family home on a 25,325-square-foot vacant lot designated as Block 557-CC, Lot 9-D-9 (the lot) on the Edison Township Tax Map. The lot is located in an R-A zone at the end of a cul-de-sac on Sleepy Hollow Road. Wedge-shaped, the lot widens from sixty-seven feet at the street line to a 315-foot rear-lot line that ranges in depth from 125 to 140 feet. Although the lot conforms with all zoning requirements, it is smaller than many of the surrounding lots. The home, a 30- by 117-foot brick ranch house, which has since been constructed, is compatible with the custom-built homes that establish the character of the neighborhood. Gash, who suffers from a heart condition, designed a single-story home.

For aesthetic reasons, the design included a garage with an entry on the side. The lot could accommodate a side-entry garage only by locating the house behind the thirty-five-foot-minimum front setback. Consistent with the front-yard setbacks on the existing homes, Gash located his home fifty-five feet back from the curb. Because of the shallowness of the lot, the rear of the house was only twenty-eight-feet from the rear-lot line, thereby necessitating a thirty-two-foot variance from the minimum rear-yard setback of sixty feet.

Three neighbors objected, only two of whom, plaintiffs Herbert B. and Sherill I. Bressman and Milton and Lois Steinhorn, continue to object. Former plaintiffs Alan and Marylou Greenblatt originally objected, but no longer do so. The rear corner of the Steinhorn property abuts one rear corner of the lot; the Bressman property, which is on the far side of the Steinhorn property, does not abut the lot.

Plaintiffs objected not to the erection of the proposed house, but to its location within the sixty-foot rear-yard setback. They presented two alternative designs for the location of a home on the lot. Their plans, both of which depicted garage doors on the front of the house, also required rear-yard-setback variances.

On June 30, 1987, the Board of Adjustment unanimously granted the requested rear-yard variance. In granting the variance, it stated:

6. The Board finds that due to the irregular shape of the property, it would be almost impossible to construct a house on the property comparable to surrounding houses without the necessity of some variance. In view of the distance between the houses to the rear of the property and the applicant's property line, the Board finds that it would be more advisable to have a rear yard variance than a side yard variance. Even considering the objectors' alternate plans, it is obvious that it would be impossible to construct the house without the necessity of a rear yard variance, and under Alternate Plan B a side yard variance.

Of the three proposed plans, that of the applicant, as well as the alternate plans of the objectors, the Board finds that the applicant's plan is most acceptable and would have the least affect [sic] upon surrounding properties.

7. The Board further finds that the granting of the requested variances would have no adverse affect [sic] upon the surrounding properties and would not impair the intent and purpose of the zone plan and zoning ordinance in view of the distance between the rear of the proposed dwelling and the rear of the dwellings on the property located to the rear of the subject property.

Plaintiffs appealed to the Law Division, which affirmed the grant of the variance, whereupon they appealed to the Appellate Division. Gash began building while the appeal was pending, completed construction in March 1989, and has since occupied the dwelling.

Also in March 1989, the Appellate Division reversed the grant of the variance. The court correctly noted that the Board of Adjustment had not indicated whether it was granting the variance under N.J.S.A. 40:55D-70c(1) or (2)*fn1 A c(1) variance requires proof of the "positive criteria," which are predicated on "exceptional and undue hardship" because of the exceptional shape and size of the lot. A c(2) variance requires a balancing of the benefits and detriments from the grant of the variance. Kaufmann v. Planning Bd., 110 N.J. 551, 558-60, 542 A.2d 457 (1988). Both c(1) and (2) variances require ...

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