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Miller v. Abbott

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2008

GEORGE K. MILLER, JR. AND DEBRA MILLER, PLAINTIFFS-APPELLANTS,
v.
JOHN SCOTT ABBOTT AND JOANNE ABBOTT, CITY OF MARGATE ZONING BOARD OF ADJUSTMENT, CITY OF MARGATE, STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-8244-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 14, 2008

Before Judges S.L. Reisner and Gilroy.

Plaintiffs George K. Miller, Jr. and Debra Miller appeal from an August 6, 2007 order of the trial court, dismissing their action in lieu of prerogative writs challenging a decision of the Margate Zoning Board of Adjustment which granted two variances to John Scott Abbott and Joanne Abbott.*fn1 We reverse.

I.

This case concerns two portions of the Margate zoning ordinance. One section prohibits certain outside staircases: "There shall be no outdoor stairs providing access to second stories in single-family zones." City of Margate Code § 175-30(C)(7). The other section regulates the height and setback requirements for decks:

Decks and patios of 18 inches above grade must meet the required yard setbacks for principal buildings. Decks 10 inches or less may be located anywhere in the rear yard. Decks above 10 inches and up to 18 inches shall be setback at least three feet from the property line in the rear yard. [City of Margate Code § 175-33(D)(3).]

The dispute arose from the following factual background. The Abbotts and the Millers own adjacent waterfront properties located along the Sunset Canal in Margate City, New Jersey. In February 1987, the Margate City Planning Board approved the Abbotts' application for a minor subdivision approval and a "C" variance in order to move the lot line to enlarge their property and eventually build a home. In 1988, the Abbotts obtained a variance for the same property to construct a staircase to their rear deck, conditioned upon the Abbotts not constructing any obstacles which would block the Millers' water view.

Approximately sixteen years later, in 2005, the Abbotts planned to replace the rotting bulkhead located at the rear of their property facing the canal. They also wanted to build a floating and a fixed dock and significantly modify their existing rear deck. The bulkhead and docks required a permit from the Department of Environmental Protection (DEP), and approval from the Margate City governing body following a wharf hearing. The Abbotts obtained both of those approvals.

The Abbotts then secured a building permit to construct the docks and the bulkhead, but they did not obtain a permit to reconstruct the deck. Nonetheless, they proceeded with the entire project. Construction began in May of 2005. By letter dated August 25, 2005, Margate Zoning Officer Rubin concluded that the construction violated the Margate zoning code. Specifically, the rear deck was not being built in conformity with the section of the Land Use Ordinance, § 170-33D(3), requiring a deck that exceeds 18 inches above grade*fn2 to be set back ten feet behind the bulkhead. Rubin opined that the proper grade from which to measure "would be the logical rear yard grade prior to almost two decades of erosion of dirt under the old deck." In response, the Abbotts sent Rubin a letter contending that they raised the grade on their property, and the measurement should thus be taken from this newly increased grade. Rubin, by letter dated September 7, 2005, rejected the Abbotts' contention and reaffirmed his initial position.

On September 13, 2005, the Abbotts appealed Rubin's determination to the Board of Adjustment. While this appeal was pending, the Margate City Solicitor sent a letter dated October 4, 2005, to one of the City commissioners, the City Engineer, the Land Use Administrator, and the Code Official, directing the Code Official to "rescind the stop work order" on the Abbotts' project. Her letter did not specify the source of her authority to issue such an order. A construction permit was issued for the deck on October 13, 2005, and the Abbotts speedily completed construction of the deck. That same day, the City Solicitor sent a follow up letter to all the parties withdrawing from the matter in order to avoid any appearance of impropriety, as she was the Ventnor Municipal Court Judge and Mr. Abbott was the Ventnor City Solicitor.

Following the issuance of the construction permit, the Abbotts withdrew their appeal to the Board. On December 1, 2005, the City issued a Notice and Order of Penalty against the Abbotts, for violations of the State Uniform Construction Code Act and Regulations. A stop work order dated December 5, 2005, followed.

The next day, December 6, 2005, the Abbotts filed a complaint in lieu of prerogative writs in the Law Division. The Abbotts moved for summary judgment on Counts 1 and 2, which sought the following relief: (1) an order compelling the City to permit the completion of the bulkhead, dock, and deck as built, (2) an order compelling the City to reveal their basis for concluding that the height of the deck should be measured "from a previous grade which no longer exists and [why it] is not permitted to be measured from the current grade," (3) an order finding the notice and order of penalty void and of no effect, and (4) damages and costs.

In a written opinion dated January 31, 2006, the trial judge upheld Zoning Officer Rubin's definition of grade, concluding that it was "logical and clearly consistent with the intent of the Zoning Ordinance." According to her written opinion, Abbott's proposed interpretation of the ordinance, as meaning that the person constructing a deck can unilaterally and arbitrarily increase the existing grade, renders meaningless the intent of the Ordinance and also provides no notice to neighbors as to what may be constructed next door or up the street without seeking appropriate approvals. Rubin is correct, the higher the deck, the greater the impact on surrounding neighbors.

However, she restrained the City "from enforcing any penalties or other sanctions against [the Abbotts] pending application to the Zoning Board of Adjustment for approvals for the upland portion of their deck," or the portion that had been constructed above the height permitted by the Ordinance.

On March 20, 2006, the Abbotts applied to the Board for "any and all variance relief as may be deemed necessary so as to allow the applicants to continue the existence of their deck constructed to the rear of their bayfront home," (a C variance). In addition, the Abbotts sought a variance for the construction of a spiral staircase to go from the first floor of the deck to the second floor deck (a D variance).

A hearing was held before the Board on April 5, 2006. John Scott Abbott (Abbott), who is an experienced land use attorney, represented himself and his wife.

At the hearing, Zoning Officer Rubin initially outlined the current violations on the Abbotts' property.

The subject property is a two-story single-family house on a lot of 65 by 100 feet, of which about 72 feet is uplands and the balance is in the Sunset Canal. The applicants recently raised the level of a portion of their rear first floor deck up to approximately the level of the other portions of that deck which were previously higher. The raised up portions are the subject of this application.

The deck enlargements were constructed at elevation 8.98 feet above mean sea level datum. The Land Development Ordinance reads at 170-33D(3), quote "Decks and patios over 18 inches above grade must meet the required yard setbacks for principal buildings," . . .

Several months ago, the building inspector asked me to determine if the deck, under construction at the time, conformed to this requirement. Field inspection at that time indicated a greatly eroded rear yard under the decks, probably based on bulkhead deterioration combined with rearward pitch of lot grade, toward the canal. To establish grade, then, I had to determine, in fairness to the Abbotts, where the grade was before 17 or more years of erosion had taken its toll. I determined that the line of mortar exposed on the side wall of the house was the location of the side concrete pathway, fell a few inches by natural erosion, as well. This line, called the "cream line" by the City Engineer, being where the path was when the house was built, is also the logical grade of the land under the rear yard deckage.

I had the City Engineer shoot the elevation of the cream line, and it was certified at 6.37 feet above sea level. Since the deck was built at 8.98 feet and the cream line is 6.37 feet, I determined that the deck was built 2.61 feet above grade, which is 31.32 inches above grade, which in turn is 13.32 inches above the allowance of 18 inches above grade.

Rubin had no objection to the spiral staircase, which he believed would have no negative impact on the Abbotts' neighbors, and would "likely improve the amenity and use of the waterfront by the [Abbotts]."

The applicants submitted the testimony of Abbott and an expert geologist, Dr. Stuart Farrell. According to Abbott, he decided to build a new bulkhead the previous year because the old one had rotted. After he obtained the necessary approvals, construction of the bulkhead began in May. During construction, the bulkhead began to "shift and move" since it was rotted.

Abbott explained that he decided to raise the bulkhead and re-grade the rear yard in August due to a "severe [drainage] problem in the rear of our property." He explained that his home was among the oldest in Margate. As such, the bulkheads "dipped down to the bay," which would cause water to flood underneath the porch during storms. Abbott also explained that although he raised the level of the deck, he also lowered the existing fifty-foot wide rear porch by two feet and removed a four-and-a-half foot high fence. He contended that the net result actually improved the Millers' view from their home.

At the conclusion of his testimony, Abbott gave the following summary.

Guys, that's basically it. The justification I have for my topographical and my raising my elevation, I have a unique piece of ground. It's bay front. My ground dipped down towards the bay. I have corrected it. Margate has not yet gotten to the point where they're mandating, but they should, that everybody raise their bulkheads because if they ultimately did that . . .

[y]ou can certainly mitigate flooding . . .

Common sense tells you you want your rain water to roll to the street, not stagnant and stay behind the bulkhead.

The Abbotts' expert geologist, Dr. Farrell, testified that, although the DEP does not have a height requirement for back bay bulkheads, the agency recommends raising bulkheads to prevent flooding.

They are in the act of encouraging the raising of bulkheads from elevations that use to be around six, six and a half feet mean low water to elevations of seven and a half to as much as nine feet, depending on what happens during storm surges. Back bay flooding is much more damaging in terms of FEMA claims and losses to the public and private infrastructure than ocean wave impact over the course of the last 50 years. And so if Margate, for example, were to come in for a wholesale replacement of street and bulkhead, municipally owned properties and so forth, they would, while not dictating an elevation, strongly encourage your engineering firm to raise the level to prevent minor to fairly significant storm surge flooding of the back bay and bay side environment.

Farrell's testimony did not address either the deck or the proposed spiral staircase.

The Board then opened the hearing to the public. Jeffrey Morgan, a neighbor living several houses away on the canal, testified that the Abbotts' deck is "much higher than everyone else's." In addition, although there currently was no railing in place, there previously was a railing on the property and "obviously, there is going to be" one erected eventually. Morgan opined that the raised deck and the railing would greatly impact his view.

Plaintiff George K. Miller, Jr. (Miller), who is also a land use attorney, testified next. He contended that the current construction violated the conditions set forth in the 1988 Resolution, which he argued precluded the Abbotts from any construction that would impact his view. According to Miller, the raised deck "has a dramatic negative impact on the views [from his] house. The air, the light, the open space . . . it's going to be an intolerable situation." Miller testified that persons standing on the Abbotts' newly constructed deck, which now extended to within three feet of the Millers' living room window, could peer into his living room, thus violating his privacy. Miller conceded that this was also possible with the previous deck, although not to the same extent, because the floor surface of the deck as previously constructed did not extend out so far toward his house.

The hearing next addressed the Abbotts' application for a D variance to construct an outdoor spiral staircase. Abbott opined that the staircase would enhance the safety of his home because it would provide "a second means of getting out of the house if there should have been a fire." Moreover, he assured the Board that he would not create illegal apartments in the house.

At the conclusion of the hearing, the Board members unanimously voted in favor of granting both variances. Several Board members opined that the staircase would not have a negative impact on the Abbotts' neighbors, and would also enhance safety. One Board member indicated that he believed it may have a negative effect on Miller, but he voted for the application anyway.

Regarding the C variance for a rear yard setback, and a combined side yard setback for the deck, the individual Board members stated their views as follows: (1) Mr. Abbott proceeded in good faith with the information and permit he had; (2) Mr. Abbott had been going before the Board for years and one Board member thought "his character was pretty high." Based on this, that Board member did not "think [Mr. Abbott's] character would let him proceed without knowing he was doing the right thing,"; (3) after visiting the property, some Board members were of the opinion that the C variance was not obstructive to Mr. Miller, or that lowering the Abbotts' deck would not "improve the situation"; (4) in time, all the older homes may need to raise the bulkheads; (5) the relief sought is reasonable; (6) since the houses are on a canal, there is always going to be some obstruction somewhere, as opposed to a property on the bay; (7) the raising of the grade advanced the purposes of zoning by reducing flooding and improving conditions which could lead to pollution; and (8) if the application was denied, it would result in a particular hardship to Mr. Abbott that would uniquely affect the property.

These findings were memorialized in Resolution 33 and 34 of 2006. In Resolution 33, the Zoning Board unanimously agreed to grant the Abbotts' application for a spiral staircase. According to the Resolution, the Board's decision was based on the following special reasons:

(1) The proposed location for the spiral staircase is particularly well-suited for this site due to its proximity to the Sunset Canal.

(2) Approval of this staircase will provide an additional means of ingress and egress to the property in the event of a fire or another emergency and will advance Section 2(a) of the Municipal Land Use Law.

(3) Approval of this application will also maintain adequate light, air and open space to the neighbors of this site.

(4) Approval of this application will make a positive architectural statement on the subject premises and thereby provide a significant aesthetic enhancement to the property.

The Board further determined that the relief sought by the Abbotts could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zoning Ordinance, because "any impact caused by the spiral staircase would be de minimus in nature and would have no impact on the views of neighboring properties on the Sunset Canal."

In Resolution 34, the Board granted the Abbotts' application for a C variance requesting relief "for rear and side yard setbacks and combined side yard setbacks in order to elevate an existing portion of the deck to the rear first floor deck." According to the Resolution, failure to grant this relief would result in "peculiar and practical difficulties to, or exceptional and undue hardship" upon the Abbotts for the following reasons:

(1) The site has special and unique topographic conditions which are in proximity to the Sunset Canal, as well as the testimony and evidence presented to the Board which demonstrated that the drainage which previously existed on the site caused the Bulkhead and old deck area to rot prematurely.

(2) This new construction on the subject premises will provide for better drainage and help eliminate flooding, not only on the applicants' property, but on the adjacent properties as well.

(3) A substantial portion of the subject premise is located beneath the Sunset Canal. This situation makes it extremely difficult for the applicants to comply with the Bulk requirements of this area.

The Board further determined that this relief could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning ordinance because:

(1) Approval of this application fits in with the developmental pattern of this zone, as there have been many other applicants located on the Sunset Canal requesting the same type of approval as herein.

(2) There was sufficient evidence and testimony presented before the [Board] to show there would be minimal, if any, detrimental impact on any of the neighboring properties.

On June 23, 2006, the Millers filed a complaint in lieu of prerogative writs challenging Resolutions 33 and 34 on the grounds that they were arbitrary, capricious and ultra vires, and on the basis that the approval violated conditions attached to the 1988 variances, among others.

In a written opinion dated August 6, 2007, the trial judge concluded that the Board's decision was not arbitrary, capricious, or unreasonable, and the Board properly applied the requisite statutory criteria. She concluded that the conditions in the 1988 variance were limited to that specific construction project and were not applicable to every future project. In addition, she considered the Board's finding that the new deck did not impair the Millers' use and enjoyment of their property and may even be an improvement "since the back porch had been lowered 2' and a stairway and a 4 foot high fence which were part of the 1988 construction have, as part of the current project, been removed altogether."

II.

We begin by considering the standard by which we review the decisions of the trial court and the Board. As we stated in Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22 (App. Div. 2003),

A municipal zoning board is entrusted with the sound discretion to determine whether an applicant has met the statutory criteria to obtain a variance. It is not the role of a reviewing court to determine if the decision was wise or unwise. The reviewing court's role is limited to determining whether the board's decision was reasonably supported by the record. A board of adjustment's action is presumed to be valid, and the party attacking it has the burden of proving otherwise. A board's decision will not be set aside by a court unless it is arbitrary, capricious, and unreasonable. [Id. at 37-38 (citations omitted).]

"Boards of adjustment, 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of the delegated discretion.'" Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990)(citations omitted).

We apply the same standard on appeal. "Bound by the same scope of review as the Law Division, our role is to defer to the local land-use agency's broad discretion and to reverse only if we find its decision to be arbitrary, capricious, or unreasonable." Bressman v. Gash, 131 N.J. 517, 529 (1993). However, we give less deference to a municipality's grant of a variance, as opposed to a denial. See Kohl v. Fair Lawn, 50 N.J. 268, 275 (1967)("Variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning."); Cohen v. Board of Adjustment, 396 N.J. Super. 608, 615 (App. Div. 2007); Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).

Against that general backdrop, we first address the C variance relating to the deck. The Abbotts sought bulk variances for the deck pursuant to N.J.S.A. 40:55D-70c(1).

Subsection c(1) describes the grounds on which a bulk variance can be granted based on proof of undue hardship, setting forth three categories of proof that can satisfy the statutory criteria: (a) exceptional narrowness, shallowness or shape of the property; (b) exceptional topographic conditions or physical features uniquely affecting the property; or (c) an exceptional situation uniquely affecting the property or its lawfully existing structures. [Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 52 (1999).]

The statutory term "[u]ndue 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 Adjustment, 184 N.J. 562, 590 (2005).

The unique condition of the property must be the "cause" of the hardship claimed by the applicant. The Board's inquiry should thus be directed to "whether the unique property condition relied on by the applicant constitutes the primary reason why the proposed structure does not conform to the ordinance." [Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 122 (App. Div. 2000)(citations omitted).]

A "hardship" is not limited to an inability to make any use of the property, but typically, the contention is that the 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. See Lang v. Zoning Bd. of Adjustment, supra, 160 N.J. at 55; Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 562 (1988); Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 582 (App. Div. 1991). "In other words, inutility, the confiscatory absence of any use, is not the sole predicate for a 'c' variance." Kaufmann, supra, 110 N.J. at 562 n.1.

In addition to satisfying the positive criteria, an applicant must satisfy the negative criteria set forth in the last paragraph of N.J.S.A. 40:55D-70:

No variance or other relief may be granted under the terms of this section unless such variance or other relief 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.

In this case, the Board's finding of undue hardship was premised on the following. First, the property had special and unique topographic conditions due to its proximity to Sunset Canal. This resulted in drainage problems which caused the bulkhead and old deck area to rot prematurely. Second, the new construction on the property will provide for better drainage and help eliminate flooding on the Abbotts' property, and the Millers' as well. Finally, a substantial portion of the property is located beneath the Sunset Canal. According to the Board, this makes it extremely difficult for the Abbotts to comply with the requisite Bulk requirements. In addressing the negative criteria, the Board first concluded that the C variance would not result in a substantial detriment to the public good because "[t]here was sufficient evidence and testimony presented before the [Board] to show that there would be minimal, if any, detrimental impact on any of the neighboring properties."

We conclude that the Board's decision should have been reversed, because its factual findings were not supported by the evidence. Further, having reviewed the record, we conclude that even if we look beyond the Board's recitations, there is no evidence to support granting a C variance for the deck.

Although the Board's resolution recited that the variance was needed to improve drainage on the property, there is no record evidence to support that factual finding. At oral argument, all counsel agreed that the deck itself has no impact on drainage. Only the grading of the land underneath the deck affects drainage. Since the deck, as built, is considerably elevated above the level of the re-graded ground underneath it, the Abbotts could have built a conforming deck without impacting the drainage from their property. Indeed at oral argument, Abbott conceded that he could have built a deck that conformed to the zoning ordinance, and he conceded that he finished re-grading the land under the deck after, not before, he framed the deck. There is simply no record support for the Board's finding that the property's location "makes it extremely difficult for the applicants to comply with the Bulk requirements of this area."

Moreover, Abbott's expert geologist, Dr. Farrell, provided very little testimony, and the testimony he offered was limited to the reasons for having a higher bulkhead. He offered no testimony at all about the deck. Mr. Van Duyn, whose alleged testimony is referred to in the Board's resolution, did not testify at all.

We agree with the Millers that the DEP permit was irrelevant to the variance issue. By its terms, the DEP permit did not approve the Abbotts' proposed deck, although it recited the caption of the Abbotts' plan which caption included the words "rebuilding of deck along bulkhead." However, the permit itself only granted permission to construct a 65-foot long vinyl bulkhead . . . install a 65-foot long by 4.44-foot wide recreational fixed dock, install a 6.71 foot by 6-foot fixed pier with a 3-foot by 18-foot long ramp running to a u shaped floating dock system . . . with an 8-foot wide by 26.5-foot long floating dock between.

Furthermore, the plans accompanying the application did not show the elevation of any decking and therefore would not have put either the DEP or any potential objector on notice that the Abbotts intended to raise the height of their deck. We conclude the permit did not constitute State approval for the height of the deck.*fn3 More significantly, by its terms the permit recited that "This permit does not waive the obtaining of Federal or other State or local government consent when necessary." In other words, the permit did not purport to override local zoning requirements.

Further, the Abbotts' application for a municipal wharf permit, which was required for construction of the bulkhead and dock, did not seek approval of the deck. The application for the wharf hearing recited that the Abbotts had "applied to the City of Margate for permission to construct" a "Bulkhead & Floating Dock." The City Commissioner's resolution approving the application did recite that the applicant had applied for approval to construct "decks, piers and docks." However, the terms of the application would not have placed neighbors on notice that the Abbotts were seeking to raise and expand their deck, and the City Commissioners did not have jurisdiction to grant variances for deck construction.

Based on our review of the numerous photographs in the record, we also find no support for the Board's conclusion that the enlarged deck has no impact on the Millers' property. The purpose of set-back requirements is to protect privacy and provide for some open space. Where, as here, houses are built nearly on top of one another to take advantage of the desirable waterfront area, set-backs are important to protect whatever privacy and views the owners have. These parties' houses are very close to each other to begin with. The Abbotts' original deck ended several feet from the property line next to the Millers' house, and was reached via a staircase on the Millers' side of the property. In expanding the deck, the Abbotts removed the stairs and replaced it with decking that extends to the property line, within a few feet of the Millers' side window. This clearly affects both their side view and their privacy.

Further, by raising the deck and extending it out to the water line, the Abbotts affected if not obstructed their neighbors' view of the water. The problem posed by a higher deck is not just the deck itself, but its likely use. At the hearing, Abbott testified that his family "lives" out on their back deck in the summer. To the extent that the deck is both raised and covers the entire back yard, it presents an enhanced likelihood that its constant use in the summer will interfere with the Millers' view down the canal. Consequently, the variance could not be granted without doing violence to the purpose of the zoning ordinance.

In reviewing the hearing record, we were also struck by the extent to which the Board's decision appeared to be impacted by the members' acquaintance with, and high regard for, Mr. Abbott. While the members' comments speak well for Mr. Abbott's reputation in the community, in considering a variance application, a planning board must base its decision strictly on the evidence presented, the applicable law, and its knowledge of the community as it relates to land-use issues. See In re Convery, 166 N.J. 298, 306 (2001); Burbridge, supra, 117 N.J. at 385; Kramer v. Board of Adjustment, 45 N.J. 268, 284 (1965). Decisions cannot be based on personal regard for an applicant. Because the Board's decision was not based on substantial credible evidence, we are constrained to reverse the trial court's decision in the Abbotts' favor.

We next address the appropriate remedy. Having reviewed the record, we agree with the trial judge that the 1988 variance did not include a general condition that the Abbotts would not in future construct anything that would block the Millers' water view. While conditions on variances do run with the land, DeFelice v. Point Pleasant Beach Zoning Board of Adjustment, 216 N.J. Super. 377, 381 (App. Div. 1987), the condition attached to the 1988 variance was specific to the construction at issue in that variance application.*fn4 However, the 1988 dispute should have put the Abbotts clearly on notice that their neighbors the Millers were very concerned about their water view, and it should have caused the Abbotts to act with extreme caution in planning and executing any future expansions of their deck. In building a larger and higher expanded deck without obtaining a variance or even a building permit, much less consulting with the Millers to see if they might have objections to the construction, the Abbotts acted unreasonably.*fn5

We also find unreasonable the Abbotts' assertion that they assumed the permissible height of the new deck would be measured from the top of the land after they had re-graded it to greatly increase its height. In fact, the hearing record reflects, and Abbott admitted at oral argument, that the new deck was framed before he finished re-grading the land under the deck. The obvious purpose of the zoning ordinance regulating the height of backyard decks is to safeguard both the privacy and the views of neighbors. Accepting defendants' premise would allow a property owner to undertake a mountainous re-grade of his property and then build a deck on top of it, thus obtaining an excellent view at the expense of all of his neighbors.

Since it is undisputed that the Abbotts can build a deck that conforms to the zoning ordinance, we find no reason in this record why they should not be required to modify their deck to so conform. Any hardship involved in such a project was self-created. See Jock v. Zoning Bd. of Adjustment, supra, 184 N.J. at 591. Therefore, we remand this matter to the trial court to enter an order requiring the Abbotts to either lower the deck to a height that conforms to the zoning ordinance or cut it back to satisfy the applicable set-back requirements.

III.

Next, we turn to the D variance for the spiral staircase. A use variance may be granted under certain very limited circumstances. A board of adjustment may [i]n particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 [C.40:55D-62 et seq.] of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. . . .

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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-70d (emphasis added).]

Our courts have consistently held that use variances should be granted sparingly.

Use variances are appropriate only in exceptional cases. There is a "strong legislative policy favoring land use planning by ordinance rather than by variance." [Elco v. R.C. Maxwell Co., 292 N.J. Super. 118, 126 (App. Div. 1996)]; see also Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991); Chesterbrooke Ltd. Partnership v. Planning Bd. of Chester, 237 N.J. Super. 118, 128 (App. Div.), certif. denied, 118 N.J. 234 (1989). This policy is reflected in the statutory language which authorizes the grant of a use variance only "[i]n particular cases and for special reasons."

N.J.S.A. 40:55D-70(d); cf. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992). [Stop & Shop Supermarket Co. v. Bd. of Adjustment of Twp. of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000).]

Similar to the grant of a C variance, the grant of a D variance also requires an applicant to prove both positive and negative criteria. See Smart Smr v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998).

"In general, the positive criteria require that an applicant establish 'special reasons' for granting the variance." Ibid. Although not defined by statute, our case law has recognized three circumstances where the "special reasons" requirement is satisfied.

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 159-60 (1992); (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici v. BPR Co., 107 N.J. 1, 17 n.9 (1987); and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." Smart SMR, supra, 152 N.J. at 323, 704 (quoting Medici, supra, 107 N.J. at 4). [Saddle Brook Realty, L.L.C. v. Saddle Brook Twp. Zoning Bd., 388 N.J. Super. 67, 76 (App. Div. 2006).]

"Decisional law of New Jersey consistently dictates that since no precise formula is feasible for a 'special reason,' each case necessarily turns upon its own facts." Michelotti Realty Co. v. Zoning Bd. of Adjustment, 191 N.J. Super. 568, 572 (App. Div. 1983)(citation omitted); Kohl, supra, 50 N.J. at 276.

The City of Margate Code § 175-30(c)(7) prohibits "outdoor stairs providing access to second stories in single-family zones." The Abbotts requested a D variance in order to construct an outdoor spiral staircase from the first to the second floor. The Abbotts did not contend that the proposed stairway was an inherently beneficial use or that not erecting this structure would create an undue hardship under N.J.S.A. 40:55D-70(d). Rather, the zoning board approved the D variance on the basis that it would serve the general welfare*fn6 because "the proposed site is particularly suitable for the proposed use." Ibid.

"The 'particularly suited' circumstance requires 'a finding that the general welfare is served because the use is peculiarly fitted to the specific location for which the variance is sought.'" Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 296 (1994)(citation omitted). This is an important requirement for the following reason.

Where . . . the use is not of the type which we have held of itself provides special reasons, such as a school or hospital, there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought. This is so because nearly all lawful uses of property promote, in greater or lesser degree, the general welfare. Thus, if the general social benefits of any individual use -- without reference to its particular location -- were to be regarded as an adequate special reason, a special reason almost always would exist for a use variance. Mere satisfaction of the negative criteria of the statute would then be all that would be required to obtain a variance under subsection (d). [Medici, supra, 107 N.J. at 16 (citation omitted).]

An applicant must also satisfy the negative criteria for a D variance.

"The negative criteria require proof that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" [Smart Smr, supra, 152 N.J. at 323 (citation omitted).]

Notably, a use variance applicant must establish the negative criteria with an "enhanced quality of proof."

In the use-variance context . . . in addition to proof of special reasons, [an applicant must make] an enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. The applicant's proofs and the board's findings that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district. [Medici, supra, 107 N.J. at 21.]

See also New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999).

Judged against the applicable legal standards, the resolution approving the spiral staircase is not supported by sufficient evidence or sufficient factual findings to sustain the grant of a D variance. While the resolution recited that an engineer, Mr. Farrell, testified at the hearing, he provided no testimony about the staircase. The fact that the property is located on the Sunset Canal is simply irrelevant to the need for an outside staircase, and the resolution made no effort to explain how the property's location impacted the application.

Since no architectural drawings of the proposed staircase were presented, there is no evidence to support the conclusion that the staircase will "make a positive architectural statement on the subject premises," and in any event, this is also irrelevant. If that were enough to justify a use variance, every other homeowner could build a spiral outside staircase. The fact that the staircase will allow a second means of egress and enhance safety is also insufficient; this reason would likewise justify any homeowner in installing an outside staircase, although the ordinance prohibits it. There is no evidence to support a finding that the Abbotts' house has any unique characteristics that require an outside staircase to promote safety.

Moreover, the resolution approving the variance does not even discuss the purpose of the applicable zoning restriction or the master plan, much less explain how granting the variance would be compatible with the purpose of that restriction:

The board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance. If the board cannot reach such a conclusion, it should deny the variance. [Medici v. BPR Co., 107 N.J. 1, 23 (1987).]

See also Funeral Home Management, Inc. v. Basralian, 319 N.J. Super. 200, 214-15 (App. Div. 1999). Accordingly, we conclude that the Board's decision granting a use variance for the spiral staircase cannot be sustained, and we reverse the trial court's determination on this issue. We remand for entry of an order reversing the Board's decision approving the D variance.

Reversed and remanded.


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