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Somol v. Board of Adjustment of Borough of Morris Plains

Decided: February 18, 1994.

CAROL SOMOL, PLAINTIFF,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF MORRIS PLAINS AND BOROUGH OF MORRIS PLAINS, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS V. JAMES CUSATO AND MEGANNE CUSATO, DEFENDANT/THIRD-PARTY INTERVENERS



Pisansky

Pisansky

PISANSKY, J.S.C.

This is an action in lieu of a prerogative writs. Plaintiff, Carol Somol (hereinafter "Somol"), filed an application with the "defendant, Morris Plains Board of Adjustment (the Board), for width and area variances required to a build a single family home on her undersized lot. Meetings were held on May 26, June 23, July 28, August 25, September 22 and October 27, 1992, at which objectors and their counsel were heard. Both the width and area variances were denied by resolution dated October 27, 1992. Plaintiff thereafter filed this appeal seeking a reversal of the Board's decision.

The subject property is Lot No. 8 located on Block 54 on Cleveland Avenue in Morris Plains. The area is zoned pursuant to the Zoning Ordinance adopted in 1958 and requires a lot to have an area of 18,000 square feet, a width of 120 feet and a depth of 150 feet. Lot 8 has 10,500 square feet and measures 70 feet in width and 150 feet in depth. Somol proposed to build a home of approximately 2,400 square feet that would comply with the side yard and set back zone requirements. On one side of Lot 8 are Lots 5, 6 and 7, consisting of the Morris Plains Cooperative Play School (hereinafter "Nursery School"), on the other side is Lot 9, which is a corner lot consisting of a private residence fronting on Granniss Avenue owned and occupied by defendants third party intervenors, James and Meganne Cusato (Cusatos). Lot 9, trapezoid shaped, has a front that measures 157.78 feet on Granniss Avenue, 83.20 feet along Cleveland Avenue and measures at most 132.13 feet in depth.

Somol acquired the property from the DeNapolis (her parents) as a gift by deed dated March 14, 1977. The DeNapolis acquired the property from Catherine Delaney by deed dated May 29, 1963 for $2,000.00. At the time of the 1963 transfer, Delaney also owned Lot No. 9 (the lot presently occupied by the Cusatos). Catherine V. Delaney obtained title to Lot 8 from Louis N. Grove in April 1944. At the time of this conveyance in 1944, Mrs. Delaney and her husband already owned adjoining Lot 9 on which they resided. Therefore, Lot 8 had been in common ownership with Lot 9 for approximately 19 years prior to the Delaney/DeNapoli conveyance in 1963.

Hearings before the Board were held over the course of several months. Somol testified that she took title of Lot 8 in 1977 with the intent to build a home for herself and her husband, now deceased. She also testified that her parents had paid a $700.00 road improvement assessment on the property; that the property was always assessed as a separate lot, and continues to be so assessed to this day. Further, Somol testified that she had offered to sell the property to both adjoining neighbors, but no responses were received. No offers were made to the rear neighbor because that property is off center and because the purchase of the rear property would not help to increase the plaintiff's deficient frontage. Somol and her expert witness John Lukoff (Lukoff), a licensed real estate salesperson, solicited an offer from a builder to purchase for $85,000.00; however, the offer was subject to a granting of the variances. Somol testified that she solicited the offer to obtain a fair market value appraisal of the property.

Lukoff testified that without the variances the property was useless and that the proposed structure would not negatively affect the value of the surrounding homes. Also, he pointed out that other homes were built on undersized lots in the neighborhood, although they were built before the relevant ordinance was enacted in 1958.

At a subsequent hearing, the objectors introduced their expert witness David Zimmerman (Zimmerman), a New Jersey licensed professional planner. Zimmerman testified that he examined the lot and determined that nothing could be built on the lot that would be "compatible" with the residences in the "primary neighborhood". (Zimmerman's definition of "primary neighborhood" is limited to include only the four houses on Cleveland Avenue.) Zimmerman opined that granting the application would set a precedent that the owners of undersized vacant lots to the rear of Cleveland Avenue would use to build homes on those lots. However, it is apparent that the rear lots can be merged with adjacent vacant lots. This option is not available to Somol.

The objectors, as well as several unrepresented neighbors, appeared at the hearings to testify against the application. A major concern was the alleged negative impact the proposed home would have on the existing homes values. The Cusatos testified that they purchased their home about five or six years ago on the basis that the lot would remain undeveloped and now objected because they were concerned with the impact the proposed house would have on their backyard view. Presently, Somol's lot is a wooded area directly behind Cusatos' yard; if the lot is cleared, the Cusatos alleged that their view would be cleared to the next intersection. Mrs. Cusato further testified that the $85,000.00 quoted in Somol's selling offer was too high and offered to buy the lot for $4,000.

At the July 28 hearing, Somol introduced the testimony of her rebuttal expert witness Adrian Humbert (Humbert), a licensed professional planner. Humbert testified that because of the grandfather clause in the ordinance, the drafters must have expected some undersized lots in the area. He noted that one of the existing homes on Cleveland Avenue occupied 2,505 square feet and that Somol's proposed structure would occupy 2,464 square feet, just slightly less than the already existing structure. He further testified that the proposed house would not have a negative impact on the area and that allowing the lot to be zoned into inutility would be potentially detrimental, in that vacant lots are frequently used as dumping sites. In support of this point, Somol thereafter testified that she had previously removed debris left on the lot.

At the August 25 meeting, the Board, by a vote of 4 to 3, authorized a resolution of approval to be drawn; on September 22, the motion of approval failed when two of the original positive votes were absent. At the subsequent and final hearing, a resolution memorializing the denial was adopted by the Board. The Board found that Somol had not established that a hardship existed and even if the denial of the variances would result in such a hardship, the latter was self-created by reason of the 1963 conveyance of the nonconforming lot. In additional support of this contention, the Board found that Somol's predecessors were charged with the knowledge that the lot was undersized and, therefore, the lot was sold, as opposed to zoned, into inutility, citing Chirichello v. Zoning Bd. of Adj. of Borough of Monmouth Beach, 78 N.J. 544, 397 A.2d 646 (1979). The Board also contended that Lots 8 and 9 had merged prior to the 1963 transfer because the ordinance was already in effect and the lots were in common ownership at that time.

Furthermore, the Board found that Somol failed to prove that the proposed structure would not substantially impair the intent and purpose of zoning and that it would not be detrimental to the public good. Finally, the Board found that the proposed structure would have a negative "substantial impact" upon the lighting, spacing and general appearance of the area.

It is well established that the decisions made by local Boards of Adjustment are entitled to judicial deference, the underlying rationale being that the local officials serving in those agencies are "experts" regarding local matters, including the community's needs and interests. Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965). Therefore, a court cannot substitute its judgment in place of the zoning board. Id. When reviewing the denial of a variance as in our case, the philosophy of judicial deference is even more compelling. See Cummins v. Bd. of Adj. of the Borough of Leonia, 39 N.J. Super. 452, 460, 121 A.2d 405 (App. Div. 1956), certif. denied, 21 N.J. 550 (1956). The issue before the court is whether or not plaintiff offered competent evidence satisfying the statutory criteria such that the Board's denial was arbitrary, capricious or unreasonable. Farrell v. Zoning Bd. of Adj. of Estell Manor, 193 N.J. Super. 554, 475 A.2d 94 (Law Div. 1984).

The plaintiff applied for her variances under N.J.S.A. 40:55D-70(c)(1). To succeed before the Board, she had to show that she would suffer exceptional undue hardship if the variances were not granted (positive criteria) and that the granting of the variances would not result in a substantial detriment to the public good or the zoning plan (negative criteria). Nash v. Bd. of Adj. of Morris Tp., 96 N.J. 97, 102, 474 ...


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