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Terlemezian v. Zoning Board of Adjustment of the Borough of Waldwick


September 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8067-06.

Per curiam.


Submitted May 19, 2008

Before Judges Stern, A. A. Rodríguez and Collester.

Aram Terlemezian and Nellie Terlemezian (plaintiffs) appeal from the dismissal of their Action In Lieu of Prerogative Writs, which challenged the denial By the Waldwick Board of Adjustment (Board) of their two hardship variances application. We reverse.

Plaintiffs filed an application with the Board for variance relief from minimum lot width and side yard setback requirements to allow them to construct a single family home and a separate garage on three adjoining lots (lots 5, 6 and 8) in the R-2 single family residential district. The three lots, which form an L, are undersize. The plaintiffs purchased the three lots as a single property in 2002. Since 1979, lots 6 and 8 were burdened by a deed restriction set by a predecessor-in-title, the Borough of Waldwick (Waldwick). The Waldwick Council passed a resolution setting forth the restriction contained in the deed to the effect that the conveyance is "subject to the condition that no primary building may be constructed solely on said premises."

Plaintiffs submitted a site plan to construct a 26-foot-wide house, approximately 89% of which would be located on lot 6 and 11% on lot 8. A portion of the driveway would be on Lot 5, which would otherwise be used as a garden. At the hearing held by the Board, Thomas Ashbahian testified as plaintiffs' architecture, engineering, and planning expert. According to Ashbahian, plaintiffs' lot met the requirements for a hardship variance pursuant to N.J.S.A. 40:55D-70(c)(1) because the property's unique L shape contained "all skewed property lines' with "only two, what we call normal lines, to the street line". Of the thirty-three properties located within 200 feet of plaintiffs' property, twenty-eight were non-conforming for both lot width and lot area. Moreover, with one exception, the immediately contiguous lots were all 50 by 100 feet and so were deficient in both lot area and lot width. Plaintiffs' lot was "the largest lot in the neighborhood". Ashbahian opined that plaintiffs' proposal met the negative criteria pursuant to N.J.S.A. 40:55D-70 because granting the variance would cause no detriment to the zoning plan or the zoning ordinance. The lot was excess in size, green space and "many dimensional requirements relative to or in comparison to the surrounding properties".

Board Member Ken Gurian questioned whether "the best use of that piece [is] to put a house there?" Ashbahian responded "that that is the highest and best use of this L shaped irregular lot". Abutting neighbors spoke in opposition to the variance on the bases that they had been told for many years that no buildings could be erected on the lot, and they believed that the two-story size of the house and its separate garage would be out of character among the Cape Cod style homes that predominated.

The Board denied the variance application, concluding that plaintiffs had failed to meet the positive and negative criteria. The Board's resolution states that the plaintiffs' proposal "was not in keeping with the character of the neighborhood and surrounding homes" in part because it fronted on two streets. The Board also concluded "that the merger of the lots, and building 90% of the structure on one of the deed-restricted lots and 10% on another deed-restricted lot was an attempt to circumvent the [1979 deed] restriction".

After the Board denied the variance application, plaintiffs applied to the Borough's construction code official for permission to construct a single-family home with a site plan that was modified to eliminate the need for the side yard variance. Of course, the property remained deficient in terms of the lot width requirement. Gary Kratz, the Borough Administrator, denied the permit with the following explanation:

As you are aware, lots 6 and 8 have a deed restriction on them placed by the municipality back in 1979 at the time of the sale to you. The Mayor and Council have discussed the issue of the deed restriction on these lots and have decided to not release the restriction.

Therefore, your application before the Construction Department will not be reviewed and no permits will be issued based on the plans submitted.

Plaintiffs filed this action against the Board, the Mayor and Council, the Construction Code Official, and Waldwick; seeking reversal of the Board denial of their variance applications, or, alternatively, reversal of the decision by the construction code official to deny their application for a building permit.

Following a hearing, the judge upheld the Board's denial and dismissed the complaint. The judge did not consider the construction official's denial of plaintiffs' application for a building permit.


Plaintiffs appeal to us, contending that the Board's reliance on the deed restriction to deny their variance application was arbitrary, capricious and unreasonable, because "the Board wrongfully expanded the language of the deed restriction to suit its pre-conceived notion that building should not occur on this property." They argue that the clear and unambiguous language in the deeds applied only to the single lots 6 and 8, not to the resulting merged lot.

We conclude that plaintiffs' assertion that the three lots merged into one is incorrect, because no merger occurred as a matter of law. However, the record does not support a legal conclusion that the deed restrictions preclude consideration of a hardship variance or the construction of a primary building on two of plaintiffs' lots.

Merger occurs as a matter of law when the legal title of adjacent substandard lots comes under common ownership, and the resulting property conforms with the existing zoning regulations. Jock v. Wall Twp. Zoning Bd. of Adjustment, 184 N.J. 562, 578-581 (2005). Once merged, the lots cannot be redivided without a grant of subdivision approval from the zoning authority. Id. at 580; Loechner v. Campoli, 49 N.J. 504, 508 (1967). "[T]he purpose of the merger doctrine is to bring non-conforming lots into conformity and thus advance the zoning scheme." Jock v. Wall Twp. Zoning Bd. of Adjustment, supra, 184 N.J. at 582. For that reason, the doctrine is inapplicable when the property remains non-conforming even with the adjoined lots. Ibid.; Chicalese v. Monroe Tp. Planning Bd., 334 N.J. Super. 413, 421 (Law Div. 2000).

Here however, the unmerged status of the lots did not preclude the property from being considered for a variance. Jock v. Wall Twp. Zoning Bd. of Adjustment, supra, 184 N.J. at 578.

A zoning board of adjustment is empowered under N.J.S.A. 40:55D-70(c)(1) to grant a "hardship variance" where the physical configuration or characteristics of the property create a situation such that the strict application of a zoning ordinance would create "peculiar and exceptional practical difficulties or exceptional and undue hardship upon" the property's developer. A board's decision to grant or deny a hardship variance in accordance with the standards of the statute should be upheld unless it is arbitrary, capricious or unreasonable. Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987). Generally, the factual findings of a board of adjustment will not be disturbed unless they are not supported by sufficient credible evidence in the record. Rowatti v. Gonchar, 101 N.J. 46, 52 (1985). But a board's legal determinations are entitled to no particular deference. Urban v. Planning Bd., 238 N.J. Super. 105, 111 (App. Div. 1990), aff'd as modified, 124 N.J. 651 (1991). Nor are those of a trial court. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Judicial review by the Law Division is limited to determining whether the board's decision "is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of New York, Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998).

Here, the Board did not provided any legal basis to support: its conclusion that the deed restrictions precluded construction even when the lots adjoined each other; or its assertion that the Council passed the 1979 resolution with the intention that the lots remain forever vacant. We note that the judge did not review whether the Board's decision comported with the standards for a (c) variance. Instead, the judge decided that the variance application was "moot," because the deed restriction prevented the construction of a home on the property.

From our review of the record, we conclude that, although the Board afforded nominal consideration to the merits of the variance application, its denial clearly rested in large part on the same conclusion regarding the deed restriction. Moreover, the deed restrictions are not as broad as the Board found.

A resolution by a borough council represents the exercise of a municipality's statutorily delegated powers, similar to an ordinance. Inganamort v. Borough of Fort Lee, 72 N.J. 412, 417 (1977). A municipality's "informal interpretation" of one of its ordinances is entitled to deference; however "that deference is not limitless." Bubis v. Kassin, 184 N.J. 612, 627 (2005). The meaning of an ordinance's language is a legal question to be reviewed de novo on appeal. Ibid.; New York SMSA v. Bd. of Adjustment of Tp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Municipal ordinances are interpreted according to the established rules for statutory construction. State, Tp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999); AMN, Inc. of New Jersey v. South Brunswick Tp. Rent Leveling Bd., 93 N.J. 518, 461 (1983). The overriding principle of statutory construction is that the court must look first to the plain meaning of the language. Cherry Hill Manor Associates v. Paul Faugno, Rogan & Faugno, Harleysville Ins. Co. of New Jersey, 182 N.J. 64, 74-75 (2004); Oberhand v. Director, Div. of Taxation, 193 N.J. 558, 568 (2008); Macysyn v. Hensler, 329 N.J. Super. 476, 485 (App. Div. 2000). Words should be given their ordinary meaning, absent evidence of legislative intent to the contrary. DiProspero v. Penn, 183 N.J. 477, 492, (2005); Cherry Hill Manor Associates v. Paul Faugno, Rogan & Faugno, Harleysville Ins. Co. of New Jersey, supra, 182 N.J. at 74-75. "[N]o word should be rendered inoperative or superfluous." Macysyn v. Hensler, supra, 329 N.J. Super. at 485. Moreover, courts will eschew any construction of a statute that would lead to an absurd result. Soto v. Scaringelli, 189 N.J. 558, 570 (2007); State, Tp. of Pennsauken v. Schad, supra, 160 N.J. at 170; In re Broking, 381 N.J. Super. 260, 267 (App. Div. 2005).

Where the meaning of a statute is clear on its face, it is unnecessary to look beyond the literal meanings of the words to discern its true intent and purpose. Morella v. Grand Union Co./New Jersey Self-Insurers Guar. Ass'n, 391 N.J. Super. 231, 240 (App. Div. 2007), aff'd o.b., 193 N.J. 350 (2008). Similar standards apply to the construction of the language of a deed restriction. Lynch v. Commercial Casualty Ins. Co., 93 N.J.L. 425, 426 (E. & A. 1919). Absent an explicit indication to the contrary, the words in a restrictive covenant are to be afforded their plain and ordinary meaning. Bubis v. Kassin, supra, 184 N.J. at 624. The court's primary objective is to discern the intent of the parties to the covenant. Ibid.

Here, the language of the 1979 resolution is virtually identical to that of the two deed restrictions. i.e. the conveyances are "subject to the condition that no primary building may be constructed solely on said premises".

According to Webster's Dictionary, the word "solely" means "without another" or "to the exclusion of all else." Webster's Dictionary 1097 (1979). Pursuant to that definition, the only logical interpretation of "solely" in the context of the restriction is that it precluded construction of a primary building on either lot 6 or 8 by itself. In our view, nothing in the language evidences an intention to preclude the erection of a primary building on a portion of lot 6 or 8, so long as a primary building is not solely within one lot. In other words, erecting a primary building on parts of two restricted lots, does not violate the "solely" restriction. Here, the site plan shows that the house would be located partially on lot 6 and partially on lot 8. Thus, Plaintiffs' plan to build a house on two lots adjoining one another, rather than on a single isolated lot, and their location of the house was an entirely appropriate efforts to comply with the deed restrictions, not circumvent them.

The Hardship Variance

Plaintiffs argue that the decision by the Board to deny their variance application was arbitrary, capricious and unreasonable, because the Board failed to apply the statutory guidelines, and because the unusual configuration of the lot and its lot line met the criteria for a "hardship" variance pursuant to N.J.S.A. 40D-70(c)(1). We agree.

Pursuant to N.J.S.A. 40:55D-70(c)(1) a board of adjustment has 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[.]

To obtain a variance under section (c), "applicants must satisfy two criteria: (1) that they will suffer exceptional or undue hardship if the variance is not granted--the so-called positive criteria; and (2) that the variance will not result in a substantial detriment to the public good or the zoning plan-the so-called negative criteria." Nash v. Board of Adjustment of Morris Tp., 96 N.J. 97, 102 (1984). For purposes of a (c)(1) variance, the positive criteria are that the exceptional size and shape of the land would impose an exceptional and undue hardship if the applicant were compelled to comply with the bulk variance regulations. Lang v. Zoning Bd. of Adjustment of Borough of North Caldwell, 160 N.J. 41, 55 (1999).

No part of the Board's resolution analyzed whether plaintiffs' application met the standard of section (c)(1). As to the positive criteria, the Board found that "there was insufficient proof by the applicant supporting any beneficial purpose or use to the granting of this application nor of any positive criteria upon which this [Board] could base its decision;" that the lot width and side yard variances "may not be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Waldwick Zoning Code and the Waldwick Master plan;" and that "the benefits to be derived from granting the requested variance relief and the construction of the proposed house, in conjunction with the significant opposition from the public, was not sufficient to outweigh any detriments which may arise from the application".

These findings are no more than a reiteration of the words in the statute. As the Supreme Court has observed, zoning board "resolutions that merely track the statutory language are inherently suspect." North Bergen Action Group v. North Bergen Tp. Planning Bd., 122 N.J. 567, 578 (1991).

Moreover, the Board added a "beneficial purpose" standard that does not exist in the statute. The Board made a sparse effort to consider whether plaintiffs had met the positive criteria of section (c)(1), namely that the exceptional size and shape of the land would impose exceptional hardship upon plaintiffs if the bulk regulations were strictly applied.

The only specific factual basis the Board gave for its denial was the neighbor's opposition. That opposition was entirely understandable given that they would no longer have access to plaintiffs' park-like wooded property for which they paid neither property taxes nor municipal upkeep.

The Board also referred to the applicant's initial proposal for two driveways and the property's frontage on two different streets as "not in keeping with the character of the neighborhood and surrounding homes". However, there is no question that lots 6 and 8 can not be subdivided. As in the past, each of the lots would be subject to the preclusive effect of the deed restriction. The Board's reliance on the dual frontage as a basis to prevent plaintiffs' application to construct a house, with full awareness that plaintiffs would have no possibility of constructing a house on the property if subdivided, had the effect of rendering plaintiffs' property unusable.

We conclude that the variances plaintiffs sought were minimal and would in no way provide their home with advantages or distinctions from those nearby. The deviation from the combined side yard setback requirement of just over two feet was de minimis. Moreover, it was entirely in keeping with the configuration of the nearby lots, which also were unable to meet the combined side yard requirements. Although the deviation was greater from the current standard for minimum lot size, it was still consistent with that of all the adjacent residences.

Thus, the Board's denial of plaintiffs' variance application was arbitrary, capricious and unreasonable in that it failed to apply the correct law and was unsupported by the record. Therefore, the complaint should not have been dismissed.


Plaintiffs argue in the alternative that the decision by the construction code official to deny their construction permit should be reversed and he should be directed to process a construction permit so long as the building meets all of the code requirements. We decline to address this point given our decision. However, we note that the appellate record does not include plaintiffs' application for the permit nor any information on the applicable construction code standards. It is unclear from the record whether plaintiffs' application satisfied the code requirements such that they were entitled to a permit to build the house.

Accordingly we reverse and remand to the Law Division to proceed in accordance with this opinion.


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