On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8067-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...