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Hoff v. Union Beach Planning Board

February 6, 2008

HARRY R. HOFF, PLAINTIFF-RESPONDENT,
v.
UNION BEACH PLANNING BOARD, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2673-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2008

Before Judges Wefing and Lyons.

Defendant Union Beach Planning Board (Planning Board) appeals a trial court order which reversed defendant's denial of a variance application, finding that the Planning Board acted arbitrarily, capriciously, and unreasonably. We reverse and remand.

The following factual and procedural history is relevant to our analysis. Plaintiff Harry R. Hoff purchased two properties, Lot 4 and Lot 6, Block 81, in the Borough of Union Beach, on September 7, 2005. On the same day, plaintiff sold Lot 4 to his mother for $120,000. Plaintiff had already received variances from the Planning Board to erect a single family dwelling on Lot 4. Lot 6 (the Property) is an irregular, triangular lot measuring 90 feet by 90 feet by 80 feet, which is 3507 square feet.

Plaintiff attempted to donate the Property to the fire department, whose station house is located across the street from the Property. Due to conflicting opinions on the valuation of the Property, this donation was never consummated. Plaintiff submitted documents to donate the Property to the borough and asked for a letter of donation in the amount of $250,000. Victor Tuberion (Tuberion), President of Union Hose Fire Company, stated that "I don't know if Mr. Hoff feels that we're a bunch of idiots, but there's no way we're giving anybody a letter, a donation letter of $250,000.00 for a piece of property that you can't build on." Plaintiff, on the other hand, stated that because the Property is surrounded by a B-1 business zone, it was not "farfetched that if the property was to develop as a B-1 property . . . that the property would come back at an appraised value of about 250."

Tuberion sought advice from the borough attorney. Before advice was rendered, plaintiff verbally stated that he was requesting a letter for $180,000. During the course of an appraisal, the appraiser chosen by plaintiff suggested that the Property would be valued at $160,000 to $180,000. A week later, plaintiff requested a letter for $160,000. Plaintiff had received two appraisals, one for $140,000, if the Property were considered in an R-8 residential zone, and one for $160,000, if it were considered in a B-1 business zone. Plaintiff submitted only the $160,000 appraisal to the borough attorney. With only a few days left in the tax year, the borough attorney told plaintiff to pick up the donation papers because "he was not going to jail for tax fraud." The borough attorney emphasized that the purchase cost of the Property was $40,000.

The Property is a corner lot, separated from Lot 4 by Lot 5, which is owned by another individual. Plaintiff asserts that he made an effort to either purchase enough property from the owner of Lot 5 to bring the Property into zoning compliance, or, alternatively, to sell the Property to the owner of Lot 5. Plaintiff claims that he approached the owner of Lot 5 on several occasions, giving him contracts with a blank price. "If the adjacent owner was interested in either purchasing or selling, all he had to do is insert the price." Plaintiff states that the owner of Lot 5 was not interested in either offer because his mortgage forbid the sale of a portion of the mortgaged property, and he was concerned with the additional property taxes that would result from having additional property.

On March 29, 2006, plaintiff's application for bulk variances was heard by the Planning Board. Plaintiff sought bulk variances required to build a 1064-square-feet, two-story house on the property. He required the following variances: 1) the Property is 3507 square feet, where 10,000 is required; 2) the plans plaintiff had for building on the Property had 18 feet and 17.55 feet setbacks, where 20 feet is required; 3) the Property has an 80 foot width, where 100 feet is required; 4) the Property has 88.5 feet frontage, where 100 feet is required; and 5) the Property has 96 feet depth, where 100 feet is required.

Plaintiff, as well as a professional planner, Steven Owens (Owens), testified. Owens testified that granting these variances posed no threat to light, open spaces, or air to the adjacent land. He also testified that the Property, which is bounded on two sides by public streets, has a 22.5 foot drainage lot on the south side, which creates a buffer between the proposed house and the existing house on the adjacent property. In addition, the record indicates that the Planning Board was provided copies of plaintiff's letters to his neighbor in which he attempted to buy additional land to bring the Property into zoning compliance or to sell it to the owner of the adjacent land.

Tuberion also testified concerning the attempted donation. In addition, Tuberion stated that the fire company objected to the construction because it would restrict their view and obstruct their travel on Poole Avenue. Plaintiff countered that he would restrict access to the Property from Poole Avenue, and that all access would be from the Edmunds Avenue side. In addition, he proposed a fifty-five-foot triangle site easement on the corner, which is more than double the standard triangle easement requirement.

The Planning Board voted unanimously to reject plaintiff's application for the variances. No findings of fact were made that night. However, on April 26, 2005, the Planning Board memorialized its decision by approving a resolution. The Planning Board stated that, "[b]ased on the testimony provided, it was apparent that the Applicant inflated the value of the property and had not made a good faith attempt to offer the property to the adjoining landowners at a reasonable price." The resolution stated that the requested "donation letter" was for $250,000, while the assessed value of the Property was $3900. The Planning Board stated throughout the record that plaintiff had "deceived them in the course of two applications for variances and that he had attempted to deceive the fire company as to the value of the property."

On May 31, 2006, the Planning Board adopted a supplemental resolution, which memorialized additional findings of fact. The resolution stated that "the Board did not find the Applicant's appraisal to be credible and therefore also did not find the Applicant's testimony concerning his efforts to sell to an adjacent owner or to donate the property to be credible." The Planning Board also found that the appraised value of the Property was inflated because the Property and the area surrounding it was re-zoned from B-1 ...


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