On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-000190-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Graves.
In their complaint in lieu of prerogative writs, plaintiffs William Mueller and Joseph Benardella alleged the Moorestown Township Zoning Board (Board) acted arbitrarily, capriciously, and unreasonably when it denied their application for a lot-width variance of 3.20 feet at the setback line. On August 23, 2006, the Law Division reversed the Board's decision and entered judgment in favor of plaintiffs and against defendants A. Leigh Powell and the Board. We have been advised by the Board's attorney that the Board "does not appeal from the decision of the trial court and accepts said decision granting variance relief to applicants," but Powell, a neighbor, has appealed. We affirm.
Plaintiffs are the contract purchasers of two acres of residentially zoned property commonly known as 615 New Albany Road, and identified as Block 3801, Lot 32, on the Moorestown Township tax maps. The property is located in the R-1A district of Moorestown Township, which requires a minimum lot width of 150 feet at the fifty-foot front-yard setback line. But the lot's width at the setback line is only 146.80. Thus, to construct a single-family residential dwelling, plaintiffs must obtain a 3.2 foot variance.
Plaintiffs' application was initially heard, and denied, by the Board. After plaintiffs appealed, however, the Law Division remanded the matter to the Board for submission of "additional relevant evidence including, but not limited to, the establishment of the location of the proposed single family residence on the subject lot."
James Miller, a licensed professional planner since 1971, who testified at both Board hearings, was the only expert witness to testify regarding plaintiffs' application. According to Mr. Miller, plaintiffs' need for a variance was a "classic hardship" case because "the shape of the lot" (slightly less than the 150 feet required by the Township ordinance) "triggers the need for the variance":
[I]t's a classic hardship . . . and there isn't any reasonable way for the lot owner to cure the hardship because they don't own any property that adjoins the lot that they could look to to obtain some additional acreage. Moreover, there's also established uses in all the properties around the perimeter of the property, so that any effort to acquire additional property would cause some disruption to the improvements on those adjoining properties. . . . In terms of the negative criteria, . . . the relief requested would not impair the intent or purpose of the Zone Plan and in this case . . . actually the relief would in . . . some ways advance the purposes rather than impair the purposes of the Zoning Ordinance in that the relief requested would enable the . . . property to be used as it's currently zoned to be used.
Following the remand hearing, the Board once again denied plaintiffs' application. Plaintiffs returned to the Superior Court and, on August 9, 2006, after hearing oral argument in connection with plaintiffs' summary judgment motion, the court determined plaintiffs were entitled to the variance they sought.
The court's findings and conclusions included the following:
It's not enough to have the neighbors simply rise and testify at a hearing that they don't want to [have] a house built in one spot or another, or that they would rather see the lot preserved as open space, or any other of these personal complaints that we see so often.
Here, in this case, we have the undisputed testimony of a New Jersey licensed professional planner, certified by the American Institute of Planners. And no place in the record, either initially or back in November of 2005 or on remand in March of this year, does any voting member of the Board . . . challenge, or in any way, question the credibility of Mr. Miller or his expertise.
He testified and no one disagreed, that the positive criteria has [sic] been satisfied because this is, in his terms, "A classic hardship variance situation["] . . . and that the, "Imposition of the 150 foot width requirement at the building line would basically eliminate any opportunity to put a ...