Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lang v. Zoning Board of Adjustment of Borough of North Caldwell

July 19, 1999


The opinion of the court was delivered by: Stein, J.

On certification to the Superior Court, Appellate Division.

This appeal involves a conventional "c" variance application to permit construction of an in-ground swimming pool with an insufficient southerly side yard setback, an insufficient rear yard setback, and land coverage of the property's rear yard consisting of 14.17 percent rather than the 10 percent permitted by ordinance. The North Caldwell Board of Adjustment (Board) granted the variance under both subsections (c)(1) and (c)(2) of N.J.S.A. 40:55D-70. The Board determined that the applicant's need for the variances was occasioned by the unusual narrowness of the applicant's lot, combined with the pre-existence of a paved driveway and garage along the northerly side of the property's rear yard, and that those unique attributes of the property constituted exceptional and undue hardship within the meaning of the statute. The Board also determined that the applicant's proposed replacement of an existing above-ground pool and deck with an in-ground pool constituted an aesthetic and safety enhancement to the property that outweighed any detriment. Concluding that the statutory negative criteria also were satisfied by the applicant's proofs, the Board granted the variances, imposing conditions relating to fencing and landscaping along the rear lot line.

The property owner to the rear of the applicant's lot challenged the grant of the variances. The Law Division upheld the variances. The court noted that, although the applicant's pro se presentation to the Board was not as comprehensive as it might have been, the record demonstrated that "by virtue of the narrowness of the lot it's almost impossible . . . to meet the side yard and rear yard restrictions," concluding that absent any showing of arbitrariness the court would not substitute its judgment for that of the Board. In an unpublished opinion the Appellate Division reversed, observing that to the extent the length of the proposed pool was influenced by the desire to accommodate a diving board, the purported need for a diving board did not constitute a hardship sufficient to support a variance under subsection (c)(1) of the statute. The court also rejected the Board's finding that the aesthetic and safety benefits derived from replacing an above-ground pool with an in-ground pool were sufficient to support a (c)(2) variance. Concluding that the Board's action was arbitrary, the court reversed the judgment of the Law Division.

We granted certification, 156 N.J. 411 (1998), and now reverse the judgment of the Appellate Division and reinstate the grant of the variances sustained by the Law Division.


As is often the case in variance appeals, a detailed understanding of the relevant facts is an indispensable prerequisite to the correct application of the controlling legal principles. The applicant, Robert Calabrese, was an owner of a one-family residential dwelling at 2 Hillcrest Place in the Borough of North Caldwell (Borough) that he acquired in 1990. The zoning ordinance required lots in that zone to have a minimum width of 100 feet, minimum depth of 125 feet, and minimum lot size of "15,000 square feet within the first . . . 150 feet." Calabrese's property was nonconforming when he acquired it. It was sixty feet wide at the street line and slightly less than seventy-eight feet wide at the rear lot line. At its deepest point the property measured 140.71 feet from front to rear along the southerly side line, and 132.13 feet along the northerly side line.

At the time of the application Calabrese's property was improved with a two-story residential dwelling. The rear yard contained an above-ground swimming pool with approximate dimensions of twenty-six feet by fifteen feet (390 square feet) constructed behind an irregularly-shaped deck with dimensions of approximately twenty-six feet by twenty feet (520 square feet). In addition, extending from the front of the property along the northerly sideline was a driveway, twenty-two feet in width at its widest point, leading to a concrete block garage in the northeast corner of the rear yard. As the Board's resolution notes, the paved driveway and garage occupy "substantially all of the left side yard and a substantial portion of the rear yard."

Calabrese submitted an application and plan to the Board seeking to remove the existing above-ground pool and the adjacent deck, and to construct an in-ground pool thirty-five feet long and eighteen feet wide, described by the applicant as a "stock size" pool with a vinyl liner the dimensions of which constituted the minimum size pool that could accommodate a diving board. (We note that the size of the proposed pool (630 square feet) appears to be fairly typical of the size of in-ground pools installed at single-family residential properties. See Letter from Tom Casey, Vice-President Sales, Anthony & Sylvan Pools, to Stephen W. Townsend, June 9, 1999 (stating that based on construction of 188 pools in northern New Jersey from October 1, 1998 to present, the average water surface area of all finished pools is 654 square feet)).

According to Calabrese's proposed plan, the in-ground pool would be set back approximately thirty feet from the northerly sideline, and separated by about seven and one-half feet from the concrete block garage. At its nearest point to the southerly sideline, the pool would be set back eight feet from the property line. The northerly end of the pool would be set back fifteen feet from Calabrese's rear property line and the southerly end of the pool would be nineteen feet from the rear lot line. Annexed as Appendix A to this opinion is a survey of Calabrese's property prepared by Alfred J. Clark, Inc., and depicting the proposed in-ground pool on Calabrese's property.

Calabrese sought variances from the provisions of Section 107- 22B(2)(a) of the Board's zoning ordinance, which requires that in-ground swimming pools be set back twenty feet from each sideline and from the rear lot line, and limits the area of the pool to ten percent of the area of the rear yard. The Board calculated the area of Calabrese's rear yard to be 4446 square feet, and determined that the area of the proposed pool (630 square feet) would occupy 14.17 percent of the rear yard area.

Concerning the side yard variance, the plan demonstrated that because of the location of the existing garage and driveway it would not be possible to move the pool any closer to the northerly sideline and thereby increase the setback from the southerly sideline. Calabrese testified that an evergreen hedge about fourteen feet high extended along the southerly sideline and provided a substantial buffer from the adjacent properties. As revealed by an excerpt from the Borough's tax map submitted to the Board and depicting the neighboring lots, the two lots bordering Calabrese's southerly sideline front on Mountain Avenue and are situated so that their rear yards, not their side yards, abut Calabrese's southerly sideline. The houses on those lots are set back approximately 80 and 95 feet from Calabrese's southerly sideline and neither of the property owners of those lots testified at the hearing on the variance application.

Concerning the setback variance relating to the rear lot line, Calabrese testified that moving the pool any closer to the house could create a safety hazard for residents of the dwelling. He also testified that a six-foot-high stockade fence was located along the abutting rear property line of respondent Lang, the owner of the adjacent lot to the rear whose attorney appeared at the variance hearing in opposition to the application. Calabrese testified that there was existing shrubbery along his rear property line and that he contemplated adding additional shrubbery to create a visual buffer. Lang's property, with dimensions of 100 feet by 120 feet, fronts on High Point Place which is easterly of and parallel to Hillcrest Place. Lang's residence is set back approximately 38 feet from her rear property line. *fn1 At the hearing Board members pressed Lang's attorney to set forth the reasons for his client's objection to the variances sought, noting that the proposed in- ground pool would be less visible from Lang's property than the existing above-ground pool. Lang's attorney indicated that his client objected to the fact that the size of the proposed pool precluded its being installed in compliance with the provisions of the local zoning ordinance.

Except for Calabrese's request for a variance to permit construction of a six-foot fence, an issue not implicated in this appeal, the Board granted the requested variances. The Board required that the proposed pool be relocated to provide a conforming twenty-foot- rear-lot-line setback at the pool's southerly end and a sixteen-foot- rear-lot-line setback at the pool's northerly end. The Board required Calabrese to plant a hedgerow of evergreens along the rear lot line four feet high that would grow to and be maintained at six feet in height within three years. The Board prohibited overhead lighting of the pool and required that the pump and heater be installed inside the garage if feasible and, if not, at a location adjacent to the garage designated by the local construction officials.

In support of its grant of the variances, the Board noted that the applicant's property is exceptionally narrow and is one of the narrower and smaller lots in the R-2 zoning district. The Board observed that three of the five lots fronting on the easterly side of Hillcrest Place are substantially wider than Calabrese's lot and five of the seven lots on the other side of Hillcrest Place also are wider; that all of the lots on High Point Place, the street parallel to and easterly of Hillcrest, are substantially wider than Calabrese's lot; and that the lots in the neighborhood beyond Hillcrest and High Point are "substantially larger still." The Board determined that Calabrese's lot has been "substantially affected by subsequent R-2 district requirements that have established onerous limitations on owners of such properties [that] are notably smaller than subdivided lots of a later vintage," and that therefore the "development and redevelopment opportunities on the subject lot and others like it are correspondingly impeded." The Board concluded that because of the exceptional narrowness, size, and shape of the property and the location of the existing driveway and garage, the strict enforcement of the R-2 regulations relating to swimming pools would "severely limit and perhaps preclude the installation of any reasonably sized in[-]ground swimming pool in the rear yard of the subject property." The Board concluded that because of those unique conditions the strict enforcement of the ordinance would result in exceptional and undue hardship justifying the grant of the variances sought.

The Board also concluded that the variances could be sustained pursuant to subsection (c)(2) of N.J.S.A. 40:55D-70 on the basis that the removal of the existing above-ground pool and deck and its replacement with a new in-ground pool and installation of extensive landscaping was aesthetically preferable and more visually desirable to the community, noting as well that in-ground pools generally afford a safety advantage over above-ground pools.

Concerning the negative criteria, the Board observed that based on the proposed location of the in-ground pool, combined with the existing and contemplated landscaping,

"it would seem that neighboring views of the proposed redevelopment would be quite limited indeed. There are no homes that are so proximate to the subject rear yard that a view of the pool area would be experienced from the perspective of the home. Two of the adjoining properties on the right side of the subject property are improved with free-standing garages in the abutting rear yards of those properties. The property to the rear of the subject property is not improved in the vicinity of the subject property. Consequently, an adjoining property ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.