July 11, 2008
JOHN KLIMACK, PLAINTIFF-APPELLANT,
BERKELEY TOWNSHIP BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND FREDERICK R. WIEDEKE, JR., DEFENDANT/INTERVENOR-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0646-06PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Sapp-Peterson and Messano.
Plaintiff, John Klimack, appeals from the August 10, 2007 order of the Law Division affirming the denial by the Berkeley Township Board of Adjustment (Board) of plaintiff's application for a bulk variance to construct a single-family residence on Lot 17, Block 1022 on the Berkeley Township (township) tax map.
Plaintiff claims the Board's decision was arbitrary, capricious and unreasonable because his application "met all of the criteria necessary to obtain said variance, in that hardship arose out of the size and shape . . . as well as the fact that the zoning was changed after the remainder was built." We disagree and affirm.
Plaintiff's property is designated in the township tax map as an R-200 zone, which requires a single-family home to have a minimum of 20,000 square feet in area with lot frontage of 125 feet, a minimum side yard setback of fifteen feet, and a combined side yard setback of thirty-five feet. The property consisted of a lot area of 13,598 square feet with a lot frontage of 74.86 feet, a side yard setback of 13.28 feet, and a combined side yard setback of 28.33 feet. Contiguous to plaintiff's property is Lot 18, purchased by Frederick Wiedeke (Wiedeke) in 1991. Lots 17 and 18 were both previously owned by Svea Colton, who purchased Lot 18 in 1953 and Lot 17 in 1966.
Thus, Colton shared common ownership of the properties from 1966 to 1991. Prior to conveying the properties, first to Wiedeke and later to plaintiff, Colton never obtained lot subdivision approval.
In early 2003, plaintiff applied for a variance from the Board to build, for personal use, a single-family dwelling on his property. The Board denied the variance and plaintiff commenced an action in lieu of prerogative writs in Superior Court. The court entered an order permitting Wiedeke to intervene in the matter. On June 29, 2004, Judge Eugene Serpentelli entered an order giving the parties sixty days to research the issues related to the zoning of Lots 17 and 18 of Block 1022 prior to 1976, the assessments of both lots, and "issues relating to the possible merger of said Lots on or before 1976[.]" The order further directed that "at the conclusion of sixty (60) days, the matter will be remanded to the Berkeley Board of Adjustment for purposes of additional testimony, findings of fact, and the adoption of a Resolution that sets forth the decision of the Board based on the findings of fact and an exact figure with regards to the value of the property[.]"
Additional testimony was presented before the Board, written summations were submitted to the Board and, on October 12, 2005, the Board met and discussed the value of Lot 17. On December 14, 2005, the Board passed a resolution denying the variance. The resolution set forth the following findings of fact:
L. Exhibit[s] 0-1 and 0-2 contain Deed recitals indicating both Lot 17, Block 1022[,] and Lot 18, Block 1022 were created as part of a filed Map prepared by John Fellows, P.E., and L.S.[,] approved by the Township Committee of Berkeley Township on November 27, 1953.
M. The subject property was not created pursuant to or under the Municipal Planning Act of 1953 as Berkeley Township did not create its Planning Board until June 28, 1955.
N. The subject property and Lot 18 were initially created under the Old Map Act.
O. Mrs. Svea Colton, the predecessor in title, purchased Lot 18 on October 31, 1953 and sold said property to the Objectors, Frederick R. Wiedeke, Jr. and Diane Z. Wiedeke on November 25, 1991 for $300,000.00.
P. Mrs. Svea Colton, the predecessor in title, purchased Lot 17 on February 7, 1966 and sold said lot to the Applicant on January 20, 2003 for $10,000.00.
Q. Mrs. Colton shared common ownership of both properties from February 7, 1966 until November 25, 1991.
R. In [E]xhibit 0-5 the Berkeley Township Engineer indicates the current zoning ordinance of R-200 setting forth the bulk requirements which indicates lot size, set backs, etc. has been in place since 1976 and has not been changed since that date.
S. The relatively central location of the home with respect to Lots 17 and 18 is indicative of the intention to merge Lots 17 and 18 into a single parcel.
T. Mrs. Svea Colton never applied for or received subdivision approval prior to conveying either of the properties.
U. Any alleged hardship in this case is self[-]created hardship in that the applicant's predecessor [in title], Svea Colton, illegally separated by deed the subject premises, Lot 17, from Lot 18, as same had previously merged under the doctrine of Loechner v. Campoli, [49 N.J. 504 (1967)].
V. Prior to selling Lot 17 to the applicant, Svea Colton did not offer to sell Lot 17 to either of the adjacent property owners.
W. The Board heard testimony from Richard Hobaugh, an expert appraiser, as to value. Mr. Hobaugh's testimony was that the subject premises was worth $65,000.00 as of December 6, 2002, $80,000.00 as of June 20, 2003, $335,000.00 as of June or July 2005, and $215,000.00 as of August 5, 2005. In addition, Mr. Hobaugh testified that real property values for vacant land in this specific neighborhood had increased generally at a rate of 20% per year from 2002 through 2005. Mr. Hobaugh's most [recent] appraisal also utilized a comparable property that was waterfront and is not deemed to be similar to the subject premises. Accordingly, the Board rejects Mr. Hobaugh's testimony as to value due to the numerous inconsistencies, and determines same to not be credible.
X. Mr. Klimack's testimony as to value was inconsistent in that he testified that the premises was worth far more than $10,000.00 and that Ms. Colton had gifted him a portion of the value of the premises. On the other hand, Mr. Klimack acknowledged that the purchase price was reflective of the fact that the premises needed a variance in order to develop same and that it was not a gift.
Y. There was no gift made by Ms. Colton with regard to the sale of the premises in the sum of $10,000.00. Specifically, Ms. Colton did not appear and testify in this matter to support Mr. Klimack's contentions. Moreover, there was no specific evidence of a gift by way of filing of the donor tax return, letters advising Ms. Colton of the gift tax consequences, contract of sale evidencing that a portion of the purchase price was given by way of gift, or other documentary evidence of any nature whatsoever reflecting that a portion of the purchase price was gifted to Mr. Klimack. In addition, Mr. Klimack's attorney prepared all of the documents for Ms. Colton to sign in this matter and she was not separately represented and advised by counsel in the transaction.
Z. The Objectors, Frederick R. Wiedeke, Jr. and Diane Wiedeke, offered to purchase the subject property at the value without a variance presented by their expert, Laurie Kelly, $20,170. Considering all of the testimony presented to the Board on the issue of value, the value of Lot 17 without a variance is $32,900.00.
Based on the foregoing Findings of Fact, the Board makes the following conclusions:
A. Under the Loechner v. Campoli case, Lots 17 and 18 merged[,] creating one property subject to the ordinances of Berkeley Township.
B. Mrs. Colton, the predecessor in title, owned both Lots 17 and 18 from 1966 until 1991. The current zoning for said properties [was] in effect from 1976 until the present. The prior owner of Lot 17 created her own hardship by conveying Lots 18, 18.01 and 22, while retaining ownership of Lot 17.
C. The applicant stands in the shoes of his predecessor in title and thus has failed to satisfy the positive criteria of N.J.S.A. 40:55D-70(c)(1) as he has failed to demonstrate hardship.
D. Applicants failed to demonstrate by a preponderance of the evidence that they have met the positive criteria for the grant of the variances applied for either under N.J.S.A. 40:55D-70(c)(1).
E. Based on evidence presented at the hearing before the Berkeley Township Planning Board, the Board is satisfied that the variances sought by applicants cannot be granted without substantial detriment to the public good and without impairing the intent and purpose of the Zone Plan and Zoning Ordinance of the Township of Berkeley.
In January 2006, plaintiff filed a notice of motion to enforce litigant's rights, claiming the Board had failed to comply with Judge Serpentelli's June 29, 2004 order and that the Board had unreasonably delayed the proceedings. Wiedeke filed a response to the motion.*fn1 Six weeks later, plaintiff filed a complaint in lieu of prerogative writs challenging the Board's decision denying the variance application as arbitrary, capricious and unreasonable. The Board filed an answer to the complaint and Wiedeke was granted leave to intervene in the matter and thereafter filed an answer. The parties filed pre- trial memoranda and a pre-trial order was entered.
Judge Joseph Foster heard oral argument on April 25, 2007 and, in an order dated August 14, 2007, dismissed the complaint for the reasons he orally placed on the record on August 10, 2007. Judge Foster stated:
Here the Board set forth the findings upon which it relied  in denying plaintiff's application on the last two pages of the Resolution which was adopted by the Board on December 14, 2005. Those findings are set forth on the last two pages of the Resolution under Paragraphs A, B, C, D, and E.
Essentially the Board on the basis of those findings found that plaintiff's predecessor in title owned both Lots 17 and 18 from 1966 until 1991 and that the current zoning for those properties [was] in effect from 1976 until the present, and that the prior owner of Lot 17 created her own hardship by conveying Lots 18, 18.01, and 22 while retaining ownership of Lot 17.
The Board further found that the plaintiff stands in the shoes of his predecessor in title and, therefore, found that the plaintiff failed to meet the positive criteria set forth in [N.J.S.A.] 40:55D-70(c)(1) in that the hardship asserted by the plaintiff was self[-]created.
On the other hand, the Complaint in this matter alleges that the Board in denying the application acted arbitrarily, capriciously, and unreasonably, and seeks an Order directing that the Court -- an Order directing the Board to approve plaintiff's application which would permit plaintiff to construct a single-family home on Lot 17.
The Court has reviewed the record in this matter as well as the arguments advanced by counsel on behalf of their clients. Based on that review this Court agrees with the [Board]'s*fn2 finding that plaintiff's predecessor in title created her own hardship by conveying Lots 18, 18.01, and 22 while retaining title to Lot 17, and furthermore agrees with the Board's determination that the plaintiff stands in the shoes of his predecessor in title and that on that basis the plaintiff has failed to meet the positive criteria as required under [N.J.S.A.] 40:55D-70(c)(1), and finds that any hardship in this matter was on that basis self[-]created.
[T]here is evidence in this matter that the plaintiff in the present circumstances was not entirely ignorant of the nonconformity created by his predecessor in title. As the Board found in the Resolution which it adopted on December 14, 2005 at Paragraph X, quote, "Mr. Klimack acknowledged that the purchase price was reflective of the fact that the premises needed a variance in order to develop same and that it was not [a] gift." The reference there was to the fact that Mr. Klimack had paid $10,000 for the purchase of Lot 17 which was less than market value. So that based on that finding by the Board, this is not a situation where the plaintiff in this matter was entirely ignorant of the nonconformity created by his predecessor prior to his acquisition of the lot here in question.
So based on all the principles just noted this Court is satisfied that the defendant Board correctly found that the plaintiff's predecessor in title Ms. Colton created the hardship claimed by plaintiff in support of his application for variances when she conveyed Lot 18 to the objector/interveners in this matter and retained title to Lot 17 in 1991. The fact that the plaintiff may not have participated in that transaction and even assuming he was ignorant of the circumstances as they pertained in 1991 does not absolve him of responsibility for a self[-]created hardship. The authorities cited by the Court in this matter clearly establish that the plaintiff does, in fact, stand in the shoes of his predecessor in title and, therefore, the defendant Board on the basis of all the foregoing has correctly concluded that the plaintiff failed to meet the positive criteria established by [N.J.S.A.] 40:55D-70(c)[(1)] on the basis of self[-]created hardship and that the Board on that basis did not act arbitrarily and capriciously.
In essence, the record in this matter establishes that Lot 17 is not a, quote, "specific piece of property," within the meaning of [N.J.S.A.] 40:55[D]-70(c)(1) or (2).
Lot 17 does not legally exist as a separate entity but is part of the merged lot formerly held in contiguous common ownership by plaintiff's predecessor in title. Because Lot 17 is not a, quote, "specific piece of property["] within the meaning of [N.J.S.A.] 40:55[D]-70(c)[,] Lot 17 is not appropriate subject matter for a variance application under either subsections (c)(1) or (c)(2) of that section. So on that basis the plaintiff would not be entitled to a variance under either subsections (c)(1) or (c0(2) of 40:55D-70(c).
On appeal plaintiff raises the following points for our consideration:
THE COURT'S DECISION IS ARBITRARY, UNREASONABLE, AND CAPRICIOUS, AND MUST BE REVERSED.
A. THE BOARD'S DECISION RESULTS IN A "TAKING" OF PLAINTIFF'S PROPERTY.
B. NEITHER COLTON NOR KLIMACK CREATED THE HARDSHIP AND LOTS 17 AND 18 DID NOT MERGE.
C. THE BOARD ERRED IN ITS ASSESSMENT OF THE MARKET VALUE OF LOT 17.
D. WEIDEKE SHOULD NOT PROFIT FROM KLIMACK'S HARDSHIP BECAUSE HE COMES TO THE COURT WITH UNCLEAN HANDS.
From our independent review of the record, we are in complete agreement with Judge Foster's analysis and conclusions, and we affirm substantially for the reasons set forth in his thorough and well-reasoned oral decision of August 10, 2007. We add only the following brief comments.
In our review of the grant or denial of a variance application, we employ the same standard of review as that employed by the trial judge. New York SMSA, L.P. v. Bd. of Adjust. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham v. Bd. of Adjustment at Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). Our task is to determine whether the decision of the Board reflects compliance with statutory guidelines and whether the Board's decision was arbitrary, unreasonable, or capricious. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990); see also Kramer v. Bd. of Adjust. of Sea Girt, 45 N.J. 268, 296 (1965). To that end, we have previously stated:
Variance questions are entrusted to the sound discretion of the municipal zoning board hearing the application. Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 558  (1988). The Legislature has recognized that local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications. Ward v. Scott, 16 N.J. 16, 23,  (1954); Hawrylo v. Bd. of Adjustment, Harding [Twp.], 249 N.J. Super. 568, 578  (App. Div. 1991).
[Med. Ctr. at Princeton v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001).]
Moreover, in reviewing the factual findings of municipal land use boards, we will accord deference to those findings that are supported by substantial credible evidence in the record, Kramer, supra, 45 N.J. at 296-97. Further, where a variance application has been denied, courts will accord even greater deference to such a denial because variances tend to impair sound zoning. Cerdel Constr. Co. v. Twp. Comm. of East Hanover, 86 N.J. 303, 307 (1981) (affirming township committee's order which reversed the zoning board's approval of the applicant's variance application because the zoning board abused its discretion in granting the variance and applicant failed to prove special reason warranting approval of the variance); Med. Realty Assocs. v. Bd. of Adjust. of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988) (holding where an applicant challenges the denial of a variance application, the applicant bears "the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious and unreasonable"); Mahler v. Bd. of Adjust. of Fair Lawn, 94 N.J. Super. 186 (App. Div. 1967) (affirming a zoning board's denial of applicant's variance application to operate a dentist office out of a residential home in an area zoned for residential use even though traffic and parking patterns would be unaffected because the applicant failed to show special reason), aff'd o.b., 55 N.J. 1 (1969). The heavy burden placed upon an applicant challenging the denial of a use variance "reflects the 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), and reinforces the principle that use variances are only appropriate in "exceptional cases." Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000). N.J.S.A. 40:55D-70(c)(1) provides in pertinent part that a board of adjustment shall have the power to Where:
(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions 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 regulation pursuant to article 8  of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship[.]
We have previously interpreted the terms "exceptional practical difficulties" and "exceptional undue hardship" referenced in this statute as not including hardship or exceptional circumstances that have been self-created. Commons v. Westwood Zoning Bd. of Adjust., 81 N.J. 597, 606 (1980) (finding that "[i]f the property owner or his predecessors in title created the nonconforming condition, then the hardship may be deemed to be self-imposed"); George F. Barnes Land Corp. v. Bd. of Adjust. of Wyckoff Twp., 174 N.J. Super. 301, 304 (App. Div. 1980) (when a land developer severs a conforming lot and sells a portion to a third party knowing the remaining portion would violate the zoning requirements, the remaining portion is not entitled to a hardship variance); Branagan v. Schettino, 100 N.J. Super. 580, 587-88 (App. Div. 1968) (where a property owner had a property that was in full compliance with zoning requirement and the owner sold one-half so that the remaining land did not meet the minimum zoning requirements, the owner created the condition and is therefore not entitled to a hardship variance); but see Harrington Glen, Inc. v. Leonia Mun. Bd. of Adjustment, 52 N.J. 22, 28 (1968) (when neither the owner of the property at the time of the adoption of the zoning ordinance, nor subsequent owners did anything to create the undersized lot which violated the zoning ordinance, the original owner is entitled to a hardship variance and the right to such relief passes to the successors in title despite the succeeding owner's knowledge of the zoning ordinance violation when it purchased the lot). As we stated in Ketcherick v. Borough of Mountain Lakes Bd. of Adjustment, 256 N.J. Super. 647, 652 (App. Div. 1992), "when a hardship is self-imposed, the board may deny the variance application." (emphasis added).
Here, the Board found that the "relatively central location of [Svea Colton's] home with respect to Lots 17 and 18 is indicative of the intention to merge Lots 17 and 18 into a single parcel" and therefore merger occurred under the doctrine of Loechner, meaning that the adjacent, nonconforming lots came into common legal title. Jock v. Zoning Bd. of Adjust. of Twp. of Wall, 184 N.J. 562, 581 (2005). In conveying Lots 18, 18.01 and 22 while retaining title to Lot 17, plaintiff's predecessor in title created the hardship. Such conduct is imputed to plaintiff, who stands in the shoes of his predecessor in title.
Harrington Glen, supra, 52 N.J. at 28. As such, the trial court properly concluded on that basis that plaintiff failed to meet the positive criteria as required under N.J.S.A. 40:55D- 70(c)(1).
Plaintiff's remaining arguments that the Board's actions constituted a "taking," the Board erred in its assessment of Lot 17's market value and Wiedeke had unclean hands are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).