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Fay v. Belmar Zoning Board of Adjustment


May 7, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3606-06.

Per curiam.


Submitted: April 9, 2008

Before Judges Cuff and Simonelli.

In this appeal, we review an order affirming three bulk variances but reversing another variance required to construct a new oceanfront home. We conclude that the trial judge improperly supplemented the record during a site visit and substituted his judgment for that of the local board of adjustment. Therefore, we reverse that portion of the order that set aside the variance to allow a third floor on the proposed house. The remaining variances are affirmed.

James Ward acquired the property located at 2000 Ocean Avenue, Belmar, in August 2004. The property is a corner lot situated across the street from the boardwalk that runs the length of the town and along the beachfront. The lot is 50 feet wide along Ocean Avenue and 100 feet wide along 20th Avenue. A single-story house was on the site when Ward acquired the property. The house did not conform to setback requirements in the current zoning ordinance.

The property is in the R-50 zone that requires a minimum corner lot size of 6000 square feet with 60-foot minimum frontage. The minimum yard requirements in the R-50 zone are 20 feet for the front yard, 5 feet for the side yards, and 35 feet for the rear yard. A corner lot, however, has two front yards and each front yard must conform to the minimum front yard setback requirement. Accessory buildings and structures must be at least 3 feet from the side and rear property lines. The principal building cannot exceed 35 feet in height and may contain no more than two and one-half stories. The maximum coverage for impervious surface is 55%, the maximum building coverage is 30%, and the minimum diameter is 30 feet. The maximum floor area ratio is 65% for lots containing 5501 to 6999 square feet and 70% for lots containing 4000 to 5050 square feet.

On or about March 30, 2005, Ward filed an application for bulk variances for construction of a single-family home with the Belmar Zoning Board of Adjustment (the Board). He proposed a three-story house with 49% lot coverage. The proposed house had 10 feet of frontage in each front yard where 20 feet was required, a 28.2-foot rear yard where 35 feet was required, and a 3.4 foot side yard where 5 feet is required. The proposed house also exceeded the 35-foot height restriction by 3.5 feet. Between the first hearing in June 2005 and the next hearing in January 2006, the plans for the house were substantially revised, so much so that the Board treated the January plan as a new application.

The revised structure contained a small basement where Ward proposed to install the residential mechanical equipment, including the equipment for an elevator to the second and third floors. The third floor was redesigned to allow for a rooftop pool and deck, as well as a bedroom suite for the applicant's mother. To accomplish this design, the architect stepped back part of the third floor.

As revised, the proposed lot coverage was reduced from 49% to 40.5%. The reduction was achieved partly due to use of pavers with drainage voids. The height of the structure was reduced to 35 feet, but still envisioned a third floor. The garage was reduced from a two-car garage to a one-car garage. In the revised plan, a portion of the house fronting Ocean Avenue was pushed back 4 feet and the structure in the rear was reduced by 3 feet. Thus, the revised plan would maintain the 3.3 feet side yard*fn1 and 28.2 feet rear yard setbacks of the existing single-family house. The revised plan still required front yard variances because the Ocean Avenue front yard would be 14.4 feet and the 20th Avenue front yard would be 10 feet.

At the hearing, the applicant's architect, Domingo J. Diaz, testified that he could design a house to conform to the zoning ordinance but the house would be only 20 feet wide. He described such a house as functionally obsolete and unusable for the owner.

The applicant introduced photographs of other structures along Ocean Avenue. These exhibits displayed many three-story residential structures 36 to 37 feet wide. The record reflects that many of these houses are in the R-75 zone with generally larger lots that can accommodate wider homes and three-story homes. In response to concerns expressed by some Board members that the lot would be overbuilt and the owner may convert the house to a two-family rental, the owner testified that he acquired the house for use by him and his family, including his mother and siblings. He asserted that he had no intention to rent the property.

Neighbors testified that the proposed house was out of character with the neighborhood. Some expressed concern about noise emanating from the rooftop pool. One neighbor expressed concern about the front yard setback because he believed his view would be blocked. Three neighbors, including respondents/cross-appellants Fay and Lepore, opposed the variance for the third floor because they had sought and been denied similar relief for their homes. One neighbor did speak in favor of the project noting that virtually every corner lot in Belmar was nonconforming. In response to the neighbors' concerns, the property owner stated that he would reduce the size of the fourth bedroom by 4 feet to allow his house to conform with other houses on his block.

At the second hearing on the revised application, the owner presented a plan that made the side yard setback 3.5 feet rather than the existing 3.3 feet. The revised plan also conformed with the 20-foot front yard requirement for Ocean Avenue, but the proposed porch on Ocean Avenue would intrude 8 feet into the front yard. In addition, the second floor was stepped back so that the 20th Avenue setback would be 14 feet. The basement was eliminated and the driveway was reconfigured to minimize sight obstruction concerns. Addressing the third floor, the architect testified that the third floor was necessary, not only to accommodate the pool, but also to fulfill the owner's purpose to provide a gathering place for his family and separate living space for his mother. In opposition, neighbors reiterated many of their comments from the prior meeting. Additional neighbors spoke in favor of the project.

At the conclusion of the March 23, 2006 hearing, the Board voted in favor of the application. In its May 25, 2006 resolution, the Board found that the existing structure on the property was outdated and suffered from deferred maintenance. The existing structure also would not accommodate the owner's needs. The Board also found that the proposed structure would be used as a single-family home and had been modified twice in response to concerns expressed by the Board and neighbors. The Board noted that the proposed design allowed the levels of the house to be "set back, in a stagger[ed] fashion, so as to minimize the 'massing' affect of the structure." The Board also found that the revisions "appreciably improved the overall benefits of the Application." Specifically, the Board found the approval of the variance for lot size "will not exacerbate the [undersized] condition and, therefore, the . . . [v]ariance can be granted without causing substantial detriment to the public good." As to the lot frontage variance, the Board found that the "Application will not exacerbate the [undersized] condition and, therefore the . . . [v]ariance can be granted without causing substantial detriment to the public good." Similarly, the minimum diameter variance will not exacerbate the undersized condition because the existing home also has a 25-foot diameter where 30 feet is required.

As to the Ocean Avenue front yard setback variance, the Board found that the existing home has a setback of 17.5 feet. The proposed plan brings the structure into conformity with the 20-foot setback requirement. Addressing the side yard setback variance, the Board noted that the side yard setback of the existing house is nonconforming at 3.3 feet. The plan before the Board provides a 3.5 feet side yard setback that will not exacerbate the existing nonconformity. The Board also found numerous front yard setback non-conformities throughout the town, particularly on corner lots. Therefore, the Board found that the 20th Avenue front yard setback could be granted without causing substantial detriment to the public good.

Addressing the variance from the 35-foot rear yard setback requirement, the Board found that the existing structure has a deficient rear yard of 28 feet, whereas, the proposed house will have a rear yard of 32.5 feet. Although still non-conforming, the application substantially ameliorates the existing nonconformity and is beneficial to the neighborhood.

Finally, the Board addressed the third floor. The Board found that placing the pool on the third floor was "an architecturally creative method" to construct amenities on a small lot. The Board also found that the revised plan substantially reduced the bulk of the house. This was accomplished by eliminating three bedrooms and incorporating a sloped design to the roof. Therefore, "because of the nature of the corner lot, because of other concessions already made, and because of landscaping to be planted at the site" a majority of the Board concluded that the third floor variance "can be granted without causing substantial detriment to the public good." A majority of the Board also found that any further revisions "would jeopardize the architectural character and functionality of the house." Moreover, the Board found that the house complied with the 35-foot height limitation.

The Board found that the application would allow construction of a new, creatively designed house that will be consistent with the architectural character of other houses in the area. The proposed house will also dramatically improve the appearance of the site and the neighborhood and will allow the property owner to enjoy functional and comfortable use of his property.

Plaintiffs Kevin Fay, Joseph Schafer, and Dennis Lepore filed a complaint in lieu of prerogative writs objecting to the variances. Before issuing his ruling, the trial judge conducted a site visit. Prior to issuing his oral opinion, the judge related that he visited the site, made some measurements of porches in the neighborhood, and "sat on some porches to determine whether or not the porches as variance granted would in any way effect the ability of the parties to see or effect their [l]ight and air." He found that the design as allowed by the variances would not have a negative effect on neighboring property owners. He also reported that there were no three-story homes in the immediate area of the proposed house and that the closest three-story homes were four or five blocks away. The judge also related that he spoke to neighbors who appeared at the site visit and that the neighbors did not object to the porch as soon as they realized the actual dimensions.

The judge observed that the area in which the house is to be constructed is characterized by one and one-half-story and two-story homes. Most of the surrounding homes do not have the porch space contemplated by the owner. Most of the front yards on 20th Avenue measure 19.7 feet to 19.9 feet, i.e., only minimally less than the 20 feet required in the zone. In that sense, the design of the Ward home was out of character, but the judge also described the area as a "neighborhood in transition."

As to all bulk variances other than the third-story variance, the judge found that the applicant carried the requisite burden of proof for the remaining variances whether analyzed as c(1), N.J.S.A. 40:55D-70c(1), or c(2), N.J.S.A. 40:55D-70c(2), variances. He noted that the applicant established the requisite hardship for a c(1) variance through the testimony of his architect. Diaz testified that a long, thin house would be unusable and out of character with the rest of the neighborhood.

As to the c(2) variance, the judge found that replacement of an obsolete structure in need of maintenance with an architecturally creative structure would improve the neighborhood. The proposed design also eliminates a nonconforming front yard setback on Ocean Avenue and reduces other setback non-conformities of the existing structure. The judge noted that the Board's finding that the proposed house would improve the community and would not substantially undermine the intent and purpose of the zoning plan was well-supported by the record.

In the end, the judge found that the appeal "is really about whether or not there would be three stories or two and one-half stories." As to that issue, the judge held that it was the property owner's burden to establish that he could not build a reasonably sized house on the lot without a variance. The judge found that a three-story house "is not the only house that could be designed for the subject parcel." He also noted that the Board resolution failed to identify any hardship or any reason to justify the third floor variance. The judge's observations of the site confirmed that a three-story home in the neighborhood would be out of character with the neighborhood. He concluded his discussion of the third floor variance as follows:

The Court personally viewed the home and the Board failed to recognize that the negative impacts of [the applicant's] . . . proposed construction on the zone . . . and the neighborhood properties by permitting this to be the only structure with a third floor along 20th Avenue in this immediate area.

Finding that the third floor "would effectively change the character of this neighborhood" and "creates a substantial detriment to the surrounding properties and clearly impairs the intent and purpose of the zoning plan," he set aside the third floor variance.

On appeal, the property owner argues that the trial judge substituted his opinion for that of the Board's and in doing so departed from the established standard of review in such matters. He also contends that the trial judge improperly relied on evidence outside the record compiled before the Board, and did not have the authority to strike a single variance. Plaintiffs, the neighboring property owners, argue that the record does not support the Board's action for the setback and building coverage variances. Implicitly, if not explicitly, plaintiffs reject the trial judge's assessment that they objected only to the variance for the third floor. They concede that the trial judge improperly relied on unsworn testimony but urge this court to excise those observations as they pertain only to his adjudication of the validity of the third floor variance.

We commence our discussion with the site visit. Members of the local board may visit the property that is subject of an application but must not engage in ex parte discussions with interested persons at the site. Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 120 (App. Div. 2000). A board's decision is to be made based on the evidence presented at the hearing conducted by the board. Id. at 120.

A judge's review of a local zoning decision is confined to the record compiled before the local zoning agency. Odabash v. Mayor & Council of Dumont, 65 N.J. 115, 121 n.4 (1974). A judge may view a site if the visit will aid the judge in understanding the evidence presented to the board of adjustment. Route 15 Assocs. v. Twp. of Jefferson, 187 N.J. Super. 481, 490 (App. Div. 1982). However, the judge may not rely on private knowledge or personal observations. Ibid.; Wallington Home Owners Ass'n v. Borough of Wallington, 130 N.J. Super. 461, 465 (App. Div.), aff'd o.b., 66 N.J. 30 (1974). In addition to the concerns presented by a site visit by a board member, a site visit by a judge requires added safeguards to ensure a fair trial. Counsel should be notified of the visit and given the opportunity to attend; their attendance may or may not be required. Route 15 Assocs., supra, 187 N.J. Super. at 490. During the visit, the judge should not allow ex parte communications with interested persons about the application. See Smith, supra, 335 N.J. Super. at 120 (noting interested parties should confine their arguments to the Board's hearings and should not discuss them with the board members during site visits).

The record before us demonstrates that the trial judge did not restrict his visit to an inspection of the area to gain a better understanding of the application. He sat on porches, made measurements, and discussed the application with interested persons who appeared at the site. Placing a summary of his actions and discussions on the record does not ameliorate the situation. The judge allowed the record to be expanded by his observations, actions and discussions, and his decision on each variance was informed by this improperly supplemented record. Nevertheless, we agree with plaintiffs that the judge's personal observations and opinions can be excised and we can confine our review to the record compiled by the Board.

Three variances are before us in this appeal: building coverage, third floor, and setback (front yard, side yard, and rear yard) variances.

Public bodies, such as municipal zoning boards, are allowed wide latitude in their delegated discretion because of their particular knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). The scope of judicial review is limited to determining whether a zoning board could reasonably have reached its decision on the record, not whether a better decision could have been made by that board. Ibid. Neither the trial court nor this court may substitute its judgment for that of the zoning board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). There is a presumption that there was an adequate basis in the record for the zoning board's conclusions, Lang v. Zoning Board of Adjustment of North Caldwell, 160 N.J. 41, 58 (1999), although greater deference is given to variance denials because variances tend to impair sound zoning. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). A trial judge determines whether the zoning board's decision was arbitrary, capricious, or a manifest abuse of its discretionary authority. Jock, supra, 184 N.J. at 597; Fallone Props., supra, 369 N.J. Super. at 560. Legal determinations of law are subject to de novo review by the trial court. Fallone Props., supra, 369 N.J. Super. at 561.

This court applies the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[T]he appellate court will give substantial deference to findings of facts, and will overturn discretionary rulings only if arbitrary and capricious." William M. Cox, New Jersey Zoning and Land Use Administration, § 33-4 (Gann 2008). Special deference is not shown to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The property owner's application was founded on N.J.S.A. 40:55D-70c(1) and c(2). The c(1) variance requires a demonstration of hardship due to the physical characteristics of the lot. N.J.S.A. 40:55D-70c(1); Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 426-27 (Law Div. 2000). The c(2) variance, often referred to as the flexible c variance, allows departure from the zoning when application of the zone plan is not advanced and the benefits of the deviation substantially outweigh any detriment due to the physical characteristics of the property. N.J.S.A. 40:55D-70c(2); Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 553 (1988).

The hardship criteria of a c(1) variance is unaffected by personal hardship. Lang, supra, 160 N.J. at 53. The focus is "whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Ibid.; see Whitehead v. Zoning Bd. of Adjustment of Kearny, 51 N.J. Super. 560, 570-71 (App. Div. 1958) (overturning variance for pool at private club because the only real "reason" advanced for the pool's installation was for the personal benefits of its members); but see Tullo v. Twp. of Millburn, 54 N.J. Super. 483, 499 (App. Div. 1959) (granting variance for pool because pools had become more customary).

Ward was not required to demonstrate that the claimed hardship would result in the inability to make any use of the property. Kaufmann, supra, 110 N.J. at 562 (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987) (Stein, J., concurring)). His burden was only to demonstrate that it may inhibit the extent to which the property can be used. Ibid.; see Lang, supra, 160 N.J. at 54 (noting an applicant seeking a c(1) variance need not prove that without the variance the property would be zoned into inutility). It is not a proper analysis to base a c(1) variance on whether the applicant could have constructed a conforming structure. Lang, supra, 160 N.J. at 54-55. The focus should be on whether the narrowness of the lot required the setback and building coverage variances sought by the applicant. Id. at 56.

A c(2) variance is not justified when "merely the purposes of the owner will be advanced." Kaufmann, supra, 110 N.J. at 563. Rather the community must actually receive a benefit due to the fact that the variance represents a better zoning alternative for the property. Ibid. Thus, the focus of the c(2) positive criteria is on the characteristics of the land that present an opportunity for improved zoning and planning for the benefit of the community. Ibid. The negative criteria focuses on the impact that the variance will have on the specific adjacent properties affected by the deviations from the ordinance, Lang, supra, 160 N.J. at 57, as well as any detriment to the zoning plan. Kaufmann, supra, 110 N.J. at 565. Zoning boards are not to utilize their discretion to rewrite ordinances that do not suit applicants; they are to effectuate the goals of the community's zoning and planning ordinances. Id. at 564. However, "[t]he Legislature undoubtedly intended through the c(2) variance to vest a larger measure of discretion in local boards in a limited area of cases." Id. at 566.

Corner lots are unique in that they must maintain two front yard setbacks. If Ward's lot had not been undersized, his home would have conformed to ordinance requirements. The Board acted within its discretion when it found that the narrowness of Ward's lot satisfied the hardship criteria for a c(1) variance for setbacks. Support for a c(2) variance is also presented by the reduction of the existing nonconforming side and rear yard setbacks. In short, the plan achieves, in some respects, better zoning.

The Board found that these smaller nonconforming setbacks would not exacerbate the existing condition and instead would be "beneficial for the Site/neighborhood." The replacement of the existing ill-maintained rental home was also another benefit the community derived from the approval of Ward's application. The Board noted, "approval of the within application will dramatically improve the appearance of the site and the neighborhood."

The approved setbacks will obstruct to a minor degree the sight line along 20th Avenue because the setback of the porch falls 1 foot short of the required porch setback. The Board also referred to other corner properties in the area to determine that Ward's nonconforming front yard setback would not cause substantial detriment to the public good.

While each application is to be reviewed upon its own merits, there is also an inherent comparison that must occur when considering a variance application because the character of the neighborhood must be assessed. It is to this local knowledge that the court defers in its review of the Board's decision. See Fallone Props., supra, 369 N.J. Super. at 561 (noting local officials are thoroughly familiar with their communities' characteristics and are given deference due to that knowledge).

Plaintiffs also object to the Board's failure to consider alternatives to the home proposed by Ward. They argue that a 29-foot wide home would be in harmony with the homes in the neighborhood. However, it is not proper for this court to determine whether the applicant could have constructed a conforming structure, Lang, supra, 160 N.J. at 54-55, or whether an alternative design would have been a better idea. Our limited scope of review does not allow us to second-guess the Board.

Similarly, the record supports the variance for the third floor. Here, the analysis of the record for a c(1) or hardship variance for the third floor should have focused on the physical feature of the lot that required a third floor rather than the proposed use of the space created by the third floor. The judge focused almost exclusively on the proposed pool and deck. Certainly, the two were connected, but the pool and deck were not the sole reason the property owner sought a third floor. He had testified that he also hoped to obtain living space for his mother apart from the rest of the family.

In any event, in granting the variance the Board acknowledged the design features adopted by the applicant that minimized the mass that ordinarily attends a third floor. It cited the stepped back design and the structure's conforming height. Furthermore, the undersized corner lot with its two front yards constrained design of a house for current use. Thus, the Board found that the variance would not cause substantial detriment to the public good.

Similarly, as to the c(2) variance, the Board found that stepping back each successive floor was a better design for this site and the neighborhood than the design that would otherwise be achieved by strict compliance with the zone plan. This finding is well-supported by the record. The advisability or wisdom of the third floor and the uses to which the property owner wishes to put this space is not before us. Fallone Props., supra, 369 N.J. Super. at 561. Accordingly, we discern no basis to set aside the floor variance.

In summary, we affirm the April 5, 2007 order that upheld the coverage and setback variances. We reverse that portion of the April 5, 2007 order that sets aside the variance for a third floor.

Affirmed in part; reversed in part.

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