On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1546-06 PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Plaintiff Loukas Zanias appeals from an order entered on August 17, 2007 dismissing his complaint in lieu of prerogative writs and affirming the Seaside Park Zoning Board of Adjustment's (Board's) denial of his application for a bulk variance.
Plaintiff owns property on the corner of Ocean Avenue and J Street in the R-1 low-density residential zoning district in the Borough of Seaside Park (Borough). In 2004, plaintiff sought approval of substantial variances for extensive renovation of a pre-existing house located on the property. The variances were not granted and plaintiff was advised to bring the plans into compliance with the Borough's zoning ordinances. The plans were modified and ultimately approved for construction. The house was not constructed entirely in accordance with the approved plans, however, as became apparent during the hearing.
In this application, plaintiff sought setback variances to extend deck railings four feet into the required setback on the J Street side of the building.*fn1 The deck, on the third floor of the house, formed the roof of a pre-existing structure. For that deck, plaintiff requested a variance to move the deck railings out six feet rather than the four feet allowed. Plaintiff sought another variance for a second story deck, on the same side of the house. This deck also formed the roof of a pre-existing structure, and plaintiff wanted to move the railings on this deck out six feet rather than the permissible four feet, as well.
During the hearing, it came to light that on the Ocean Avenue side of the building, the third floor deck conformed to the twenty-foot setback, but the roof overhanging the deck encroached on the setback by one foot. The one-foot extension was to extend a drip line of the roof beyond the deck. Plaintiff had not sought a variance for this encroachment prior to construction.
At least twice during the hearing, Board members commented that the application was confusing as to the specific variances being sought. When the motion to approve the variances for the J Street and Ocean Avenue sides of the house failed (the vote was tied four to four), a new motion was made to approve the one-foot encroachment on Ocean Avenue and deny the J Street variances. That motion passed by a vote of four to two.
In its resolution memorializing the action, the Board stated that the Ocean Avenue encroachment was minimal; it would not "block the light, air or space of any adjacent property owners;" it "is aesthetically pleasing;" and is no "more than what is necessary to meet [the owner's] needs." With respect to the J Street deck railings, however, the Board found that "the setback encroachment [is] large;" it "will block the light, air or space of any adjacent property owners;" "is not aesthetically pleasing and will detract from the desired visual environment of the neighborhood;" and the plaintiff presented "no reason as to why he cannot build within the requirements of the zone."
Plaintiff filed an action in lieu of prerogative writs complaining that the Board granted the Ocean Avenue variance, "which was never requested," and challenging denial of the J Street variances, which he claimed were adequately supported by the evidence. Plaintiff further complained that when the Board determined that a variance was needed for the Ocean Avenue encroachment, it "should have stopped the proceedings, indicated that notice was deficient, and . . . require[d] that notification [be given] to the adjoining property owners within 200 feet that additional relief was being sought by the applicant."
In a letter opinion dated June 25, 2007, the trial court dismissed the complaint and affirmed the Board's action. In this appeal, plaintiff argues that (1) the irregularities that occurred during the hearing denied him fundamental fairness; (2) the Board lacked jurisdiction to hear the application because the notices were not properly served to owners within 200 feet; (3) the trial court erred in not reviewing the exhibits outside of the record; (4) the court erred in suggesting that plaintiff should have requested an adjournment to serve proper notice; (5) the trial court should have rendered the variance denial null and void and allowed plaintiff to submit a new application; and (6) "the court erred in stating that the plaintiff failed to substantiate relief under the applicable provisions of the Municipal Land Use Law."
The Legislature vested zoning boards of adjustment with discretion to make their decisions based upon the application and the statutory criteria. Booth v. Bd. of Adj. of Rockaway Twp., 50 N.J. 302, 306 (1967). We give due deference to the board's decision and may not substitute our judgment for the board's unless it is proven that the board's action was arbitrary, unreasonable or capricious. See, e.g., Harvard Enter., Inc. v. Bd. of Adj. of Madison Twp., 56 N.J. 362, 368 (1970); Kramer v. Bd. of Adj., 45 N.J. 268, 296-97 (1965).
We have carefully considered plaintiff's arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Joseph L. Foster's well-considered ...