February 29, 2008
ALICE SCHENKER, PLAINTIFF-RESPONDENT,
PLANNING BOARD OF THE BOROUGH OF SPRING LAKE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1583-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Coburn and Chambers.
Defendant, the Planning Board of the Borough of Spring Lake (Board), appeals from the trial court decision reversing the Board's denial of two variances requested by plaintiff, Alice Schenker. The Board granted plaintiff's request for variances to allow increased driveway and walkway coverage and an increase to the height of her side yard fence. These variances are not the subject of this appeal. The Board, however, denied her request for variances to construct a fence and retaining wall along portions of her front yards. That denial was overturned by the trial court in a decision which the Board now appeals. We reverse and reinstate the Board's resolution denying the variances.
Plaintiff owns a home located at 2000 Adrian Avenue in Spring Lake. The property is a 22,642 square foot corner lot, bordering Adrian and Ludlow Avenues with about 150 feet of frontage on each street. The house is a two-story structure with an attached garage, patios, walkways and a driveway. Plaintiff's expert acknowledged that the property is currently "aesthetically pleasing."
Plaintiff sought a variance to allow a fence to be constructed along a portion of her property facing Ludlow Avenue. She testified that she wanted to fence in a portion of the property in order to keep her dogs and her grandchildren within its borders. She proposed to put landscaping in front of the fence on the street side so that it would be visually pleasing. Because plaintiff has a corner lot, this fence would give plaintiff some visual privacy in the back of the house.
Plaintiff sought to construct the retaining wall in order to "balance" the level of the property and provide ease of access to her front yard along Adrian Avenue. The property originally had a retaining wall along the entire frontage of Adrian Avenue, but a prior owner had removed a portion of it. As a result, the retaining wall now runs along only part of that side of the property, and a portion of the front yard is lowered. Plaintiff proposed to continue the retaining wall along the Adrian Avenue side of the property, and to backfill it with dirt to raise the grade about three feet. According to plaintiff, this would improve the appearance of the property and would provide her with easier access to the front yard and driveway. She maintains that as currently configured, the lowered portion of her front yard is unusable and that the difference in elevation presents a safety hazard and visual oddity. She argues that the retaining wall and grading would correct these concerns and would make the property more pleasing visually and more in conformity with nearby properties.
On June 3, 2005, plaintiff filed an application for several variances regarding landscaping on the property. Public hearings were held on November 9, 2005, and January 11, 2006. In support of her application, plaintiff presented the testimony of Ray Carpenter, P.E., a professional engineer and planner, and Victor Furmanec, a professional planner, who testified in support of the application. While a number of other variances were granted, the Board denied plaintiff's request for variances to allow a fence and a retaining wall in the front yards. The resolution memorializing this decision is dated February 8, 2006.
Paragraph 4 of the resolution indicates that the variance for the fence was denied for the following reasons:
The Board finds that the variance relief in reference to the front yard fence must be denied. Borough ordinance 43-15 states "No fences or gates shall be constructed or placed in front yards." The Board finds that the zoning scheme in the Borough is to have open space in the front yards of the Borough's residential properties. The proposal to extend the fence from the rear of the property to and along Ludlow Avenue substantially impairs this zoning scheme. The Board finds that the applicant seeks to erect the fence proposed for personal reasons which include her personal sense of security and the need to contain her grandchildren when they visit. While the Board may understand and to an extent sympathize with the applicant's desires, the Board finds that the reasons presented do not rise to the level of hardship required to justify the variance nor do the reasons provided confer any land use benefits on the commmunity or promote the overall purposes of zoning. The Board finds that to permit a fence as proposed would detract from the unique qualities afforded by the zoning scheme and thus be a substantial detriment to the public good.
The variance for the retaining wall was denied for the following reasons set forth in paragraph 5 of the resolution:
The Board finds that the request to construct retaining walls as proposed must be denied. The Board finds that the need for the retaining walls proposed is being created by the applicant. The Board notes that the applicant intends to construct the walls and then backfill soil to raise the grade of the property. The Board finds that such a proposal runs contrary to the fence ordinance because the applicant proposes little more than a stone fence with dirt behind it. Such a proposal creates the same detriments as discussed in paragraph 4 above. The retaining wall also is contrary to the Borough's retaining wall ordinance which only permits retaining walls to control the existed grade of the soil so as to prevent erosion or protect structures.
The Board finds that any such conditions would be self-created. The Board finds that no hardship exists that would require the walls to be built contrary to the overall zoning scheme of the borough and would be detrimental to the public good.
Plaintiff filed an action in lieu of prerogative writ on March 31, 2006, challenging the Board's denial of the variances. After a trial, an order was entered on March 16, 2007, reversing the Board's denial of the variances for the fence and retaining wall. The Board now appeals to this court.
On appeal of a board's decision, this court applies the same standard of review that applies to the trial court. Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965).
Under that standard, the Board's decision is presumed to be reasonable unless a showing is made that the Board's action was "arbitrary, capricious or unreasonable." Ibid. "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion." Id. at 296. The burden is on plaintiff to establish that the Board's decision was arbitrary, capricious or unreasonable. New York SMSA Ltd. v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999). Further, the presumption that a board's decision is valid is stronger when a variance has been denied. Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4-5 (App. Div. 1976).
Plaintiff's proposed fence along a portion of Ludlow Avenue did not comply with the Borough Ordinance, which specifically provides that "[n]o fences or gates shall be constructed or placed in front yards." Spring Lake, N.J., Land Dev. Ordinance § 225-18 (2006). The proposed retaining wall also did not comply with the Borough Ordinance, which provides that "[t]he existing elevation of any land shall not be altered by more than 18 inches by means of soil removal, fill, grading or retaining wall construction, except as part of an approved development application." Id. at § 225-28A. The Borough Ordinance further provides that:
[s]ignificant alteration of the topographic features of a lot, pursuant to Subsection A above, shall be prohibited, particularly where existing trees and shrubs are to be removed and/or existing stabilized slopes are to be significantly altered. The utilization of new retaining walls as part of a lot grading plan is prohibited. The significant alteration or penetration of an existing slope in excess of two feet in height for the purpose of driveway construction shall be prohibited.
[Id. at § 225-28B.]
The Borough Ordinance expressly provides that a corner lot, which is what plaintiff has, shall be treated as having two front yards. Id. at § 225-7. As a result, plaintiff applied for variances under N.J.S.A. 40:55D-70(c)(1) and (2) in order to construct the fence and retaining wall.
To receive a "hardship" variance under N.J.S.A. 40:55D-70(c)(1), plaintiff must prove both "positive" and "negative" criteria. Cox, New Jersey Zoning and Land Use Administration, § 6-2.2, p. 127 (2007). To establish the positive criteria, plaintiff must show:
(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic condition or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any [zoning regulation] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property. [N.J.S.A. 40:55D-70(c)(1).]
Typically, the positive criteria are satisfied where "strict enforcement of the zoning ordinance, in view of that property's unique characteristics, imposes a hardship that may inhibit the extent to which the property can be used." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 55 (1999) (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987) (Stern, J., concurring)). The negative criteria are satisfied where the applicant can show that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70.
In this case, plaintiff failed to establish the positive criteria. Plaintiff maintains that she needs a variance to extend the retaining wall due to the unique characteristics of her property, including the uneven grading in the front. She contends that the difference in elevation makes a portion of the yard unusable, presents a safety hazard to pedestrians on the property, and causes an uneven appearance that impairs the uniform look of the neighborhood.
However, this difference in elevation was deliberately created by a prior owner who removed the earlier retaining wall. A hardship created by a predecessor in title cannot satisfy the positive criteria. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 590-91 (2005). "The availability of a hardship variance depends on how the hardship was created. . . . Where the hardship has been created by the applicant, or a predecessor in title, relief will normally be denied." Ibid. If the predecessor in title created the condition, it is deemed to be self-imposed. Id. at 591. Since the difference in elevation on plaintiff's property was caused by a predecessor in title, the presence of that differential cannot satisfy the positive criteria.
Plaintiff also sought a hardship variance to construct a fence along a portion of Ludlow Avenue in order to have a fenced-in area on her property to contain her dogs and grandchildren. She maintains that this is necessary due to the unique characteristics of her property, namely, that she has a corner lot with the house located at an angle, thereby depriving her of a back yard area. However, the inability to have a fenced-in back yard area is not unique to plaintiff's property, but is a problem faced by the owner of every corner property in the Borough. The Board properly concluded that plaintiff's personal desire to have a fenced-in area for her grandchildren and dogs did not rise to the level of a hardship under N.J.S.A. 40:55D-70(c)(1). "Undue hardship refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise." Jock v. Zoning Bd. of Adj. of Wall, supra, 184 N.J. at 590.
Plaintiff also sought a variance under N.J.S.A. 40:55D-70(c)(2). Under this section, the so-called "positive" criteria are satisfied "where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment." N.J.S.A. 40:55D-70(c)(2); see Cox, supra, § 6-3.3, p. 140. In addition, in order to obtain a variance under N.J.S.A. 40:55D-70(c)(2), plaintiff also must establish the same negative criteria applicable to a "hardship" variance, namely, that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
N.J.S.A. 40:55D-70; see Cox, supra, § 6-3.3, p. 140.
In order to establish the positive criteria, the proposed variance must benefit the community by presenting a better zoning alternative for the community. Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988). A c(2) variance will not be granted solely to benefit the owner of the property. Ibid. Nor in a c(2) variance application is the focus on the characteristics of the land that may create hardship for the owner. Ibid. Rather, the focus of a c(2) application should be "on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Ibid.
This application does not meet this standard. The focus of this application was the needs of the owner due to the characteristics of the land. The Board stated in its resolution that the Borough's zoning scheme is designed to have open space in its front yards. The proposed fence and retaining wall do not foster that plan, but rather run contrary to this zoning scheme. While plaintiff argues that the retaining wall will correct a visual oddity and improve the appearance of the property, the record indicates that the property is currently aesthetically pleasing. Further, the record does not indicate that the present grading on the property presents any safety concerns to the public. While plaintiff agrees to put up landscaping to screen the fence from public view, the fence would not improve the zoning and planning to the benefit of the community.
Under these circumstances, the Board was not arbitrary, unreasonable or capricious when it denied the variances for the retaining wall and fence. The decision of the trial court overturning the Board's decision is reversed.
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