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Fleres v. Zoning Board of Adjustment of the Borough of Bradley Beach


April 16, 2009


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3832-07.

Per curiam.


Argued February 25, 2009

Before Judges Axelrad and Lihotz.

In this appeal, we review an order affirming the denial of bulk variances required to construct an addition to an existing residential structure. We conclude the Law Division judge incorrectly applied the law and accordingly, we reverse.

Plaintiff Carol Fleres is the owner of property designated on the tax map of the Borough of Bradley Beach (Borough) as Block 65 Lot 16, commonly known as 102A Third Ave, Bradley Beach (the property). The property, situate in the Borough's R-B or residential beachfront zone, contains a two-story single family attached dwelling located on a lot measuring twenty-five feet by one hundred and five feet. The structure is one-half of a two-dwelling unit structure, commonly referred to as a twin or duplex. The two homes share a common wall, but each has its own property lines and is separately titled to its owner in fee simple. The property is plaintiff's full-time residence.

Plaintiff submitted an application to the defendant Zoning Board of Adjustment of the Borough of Bradley Beach (the Board), seeking bulk variances to construct a one-story ten by twenty foot addition. Essentially, plaintiff's proposed construction would enclose the first floor rear concrete patio area and add a second floor balcony atop the new enclosure. Although the proposed use is conforming for the zone, due to the undersized nature of plaintiff's lot, the application sought bulk area variances for side yard setbacks, rear yard setback, building coverage and impervious coverage. Plaintiff's requests were summarized in the Borough engineer's report as follows:

A. . . . .*fn1

B. Minimum side yard setback - 2.5/5 ft. required, 0/6.9 ft. existing, 0/5 ft. proposed.

C. Minimum rear yard setback - 25 ft. required, 31.03 ft. existing and 22.53 ft. proposed.

D. Maximum building coverage - 35% allowed, 39.4% existing and 46% proposed.

E. Maximum impervious coverage - 60% allowed, 63.2% existing, 73.5% proposed.

On May 3, 2007, the Board held a public hearing. Plaintiff presented expert testimony from her architect and planner Thomas Petersen. Petersen explained the conditions of the property - its shape, size, and the structures permanently existing on the site - created a hardship to plaintiff due to the practical difficulties with meeting the zoning ordinance in constructing her proposed addition.*fn2 Because the house is only twenty feet wide, "everything has to be stacked from front to back," impacting mandated side yard and rear setbacks. However, because the addition would be built directly above the existing patio it really "does not increase impervious coverage."

Petersen acknowledged the "biggest impact" of the proposed construction would be on the adjoining residential structure. However, between plaintiff's property and the adjoining east side neighbor is a three foot brick wall topped by a three foot fence. Covering the patio is an attached awning. The proposed development would be eight feet in height. Thus, Petersen concluded the construction, as proposed, was "really not that much of a difference" from what currently exists. Moreover, noting the importance of privacy evidenced by the fact that plaintiff and her neighbor each had erected a fence on their respective lots, Petersen opined the proposed construction would enhance the desired privacy of these conjoined homes.

Petersen detailed additional benefits derived from the construction. First, the proposed roof enclosing the patio would be "angled back" toward the rear of the house to "minimize the impact of th[e] mass" and pitched toward the property's west side to allow drainage away from the common property line. Second, as to views, Petersen noted "all the views of [adjoining properties] are in the other direction[,]" minimizing the impact of a potential interference. Finally, Petersen explained the proposed structure would be upgraded to comply with current fire code regulations.

Plaintiff's testimony expressed the purpose of modifying her patio was to provide a year-round sunroom/breakfast area adjacent to the kitchenette. The existing space in her home was limited, and the proposed enhancement would allow additional year-round living space. She believed the improvement to the property augmented the neighborhood.

During the public comment portion of the hearing, Alan Kass, who with his wife Barbara owns the residence adjoining plaintiff's property, challenged the requested variances. Kass expressed his concern that the addition as proposed would bisect and extend beyond the shared chimney, which is now exposed. Thus, the chimney would be "encapsulated" by the construction. Kass questioned whether this prevented accessibility to the chimney in the event of a fire. The Board engineer responded that the construction would have no impact on the chimney's function and would not increase potential fire risks.

Kass also objected to plaintiff's contractors encroaching or accessing his adjoining property to build the addition because he did not wish to be exposed to such a liability. Similarly, Kass stated a proposed zero setback on the east side precluded or constricted his future prospects of constructing an addition to his home. Kass stated he would not object if the proposal complied with the required setback, which was two and one-half feet.*fn3

Following Kass' comments, plaintiff assented to modify her proposal. First, plaintiff agreed to have the addition built inside the chimney, that is, two and one-half feet within the common property line, not on the lot line as proposed. Even though such a modification eliminated the basis for Kass' objection and would comply with the ordinance, Petersen, the Board engineer, and some Board members suggested the change would not provide a meaningful zoning alternative to using a zero setback. Second, plaintiff ceded to the request not to modify the west side yard setback. Plaintiff's proposal suggested that setback would meet the minimum ordinance requirement of five feet. Plaintiff agreed to retain the existing 6.9 foot setback, making the addition uniform to the sides of her home. Finally, plaintiff consented to install a recharge basin sufficient to accommodate drainage from the entire roof, not merely the addition's roof. When the Board queried whether plaintiff would also decrease the requested rear yard setback to be more compliant with the ordinance, Petersen explained the narrowness of the lot made shrinking the depth of the proposed addition impractical.

At the conclusion of the hearing, in a four to three vote, the Board denied plaintiff's application for the bulk variances. The Board issued its written decision on June 21, 2007. The memorializing resolution, No. 411-1-07-07, stated "the proposed application would adversely impact upon the master plan of the Borough of Bradley Beach and does not promote the safety and welfare of the residents of the municipality and accordingly has not satisfied the requirements of obtaining the said Variance."

Pursuant to Rule 4:69, plaintiff filed an action in lieu of prerogative writs challenging the validity of the Board's decision. Plaintiff argued she had satisfied the necessary statutory criteria proving hardship, and the Board's action in denying the variance requests was arbitrary, capricious and unreasonable. Additionally, in light of her evidence, including expert testimony, plaintiff argued the Board's resolution failed to state facts justifying the denial of the application.

A trial de novo in the Law Division was held on April 18, 2008. Plaintiff argued she satisfied the criteria for a hardship, as defined by N.J.S.A. 40:55D-70c(1)(a) and c(1)(c). Because her lot is one-half the size required of a standard lot, it is, therefore, only one-half the width. The lot size, coupled with the existing structures, made construction alternatives exceedingly limited. The trial judge agreed plaintiff's property was a "unique property" containing a lawfully existing dwelling in "an exceptional situation" due to the undersized lot. Additionally, the judge agreed the Board's resolution failed to set forth specific findings supporting the decision to deny the application. Nevertheless, after reviewing the entire record, the judge, citing Lang v. Zoning Bd. of N. Caldwell, 160 N.J. 41 (1999), concluded the hardship created was personal, "founded on the desire of the plaintiff to build an enclosed porch, which is an irrelevant consideration under the statute." Stating, "[t]here must be some limit on the concept that unique characteristics create a right to a variance," the judge concluded the Board's action was neither arbitrary nor capricious because plaintiff failed to satisfy the negative criteria imposed by N.J.S.A. 40:55D-70d.

On appeal, plaintiff argues the trial judge erred by refusing to reverse the Board's decision. Plaintiff maintains she met both the positive and negative criteria of the statute. Further, she asserts the Board's action was arbitrary, capricious and unreasonable.

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). On appeal from a decision of a municipal board on zoning and planning matters, the trial court is limited to determining whether the Board's decision was arbitrary, unreasonable, or capricious. Cell South v. Bd. of Adjustment of W. Windsor Tp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). A local board's decision is presumed valid, and the party challenging the decision has the burden of proving otherwise. Cell South, supra, 172 N.J. at 81.

In reviewing a local decision, the court must determine whether the Board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). We apply the same standard of review as the trial court, Bressman v. Gash, 131 N.J. 517, 528-29 (1993); New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004), and neither the trial court nor this court may substitute its judgment for that of the zoning board. Fallone Props., L.L.C. v. Bethlehem Tp. Planning Bd., 369 N.J. Super. 552, 561 (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). Because variances tend to impair sound zoning, a court should give "greater deference to variance denials than to grants of variances." Medical Ctr. at Princeton v. Tp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). However, 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. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Section 70 of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to 129, enumerates the Board's power to grant bulk variances. Plaintiff's application implicates various subsections of N.J.S.A. 40:55D-70c, which states in pertinent part:

(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) . . . (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 . . . 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; (2) where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to . . .[.]

Further, to successfully satisfy the statutory criteria, the general provisions following N.J.S.A. 40:55D-70d must also be met, including this requirement:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

An applicant's proofs must establish both the positive criteria evincing hardship, N.J.S.A. 40:55D-70c(1)(a), (b) or (c) or c(2), and the statutorily imposed negative criteria that granting the variance will not cause a "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d; Menlo Park Plaza Assocs. v. Planning Bd. of Tp. of Woodbridge, 316 N.J. Super. 451, 460 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). We review these statutory provisions in more detail.

Generally, a c(1) variance requires a demonstration of hardship due to the physical characteristics of the property.

N.J.S.A. 40:55D-70c(1); Chicalese v. Monroe Tp. Planning Bd., 334 N.J. Super. 413, 426-27 (Law Div. 2000). Hardship criteria are grounded in the conditions peculiar to the specific property as distinguished from others in the zone. Cox, New Jersey Zoning and Land Use Administration, supra, § 6-2.4. "Subsection c(1) speaks of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon." Id. at § 11-6.3 (emphasis removed). Typically, in view of the property's unique characteristics, strict enforcement of the zoning ordinance would impose a hardship inhibiting the extent to which the property can be used. Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987) (Stein, J., concurring).

An applicant is not required to demonstrate that the claimed hardship would result in an inability to make use of her property. Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 562 (1988) (quoting Davis Enters., supra, 105 N.J. at 493). Her burden is to demonstrate only that the property's characteristics may inhibit the extent to which it 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). Also, it is improper to base a c(1) variance on whether an applicant could have constructed a conforming structure. Lang, supra, 160 N.J. at 54-55.

"Undue hardship refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise." Jock, supra, 184 N.J. at 590; Lang, supra, 160 N.J. at 53. Thus, if no physical or topographical attributes of the property imposes limitations, the hardship criteria are not met. Additionally, "'[i]f the property owner or his predecessors in title created the nonconforming condition, then the hardship may be deemed to be self-imposed,'" and relief denied. Jock, supra, 184 N.J. at 591 (citing Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980)). Here, a determination of hardship must focus on whether the narrowness of plaintiff's property or the existing structures lawfully thereon required granting the setback and building coverage variances sought. Lang, supra, 160 N.J. at 56.

"The c(2) variance is entirely different, and the Legislature has made one thing clear about it: the grant must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL." Kaufmann, supra, 110 N.J. at 562. A c(2) variance, often referred to as the "flexible c variance," allows the Board to depart from the zoning regulations when due to the physical characteristics of the property, application of the zone plan is not advanced, and the benefits of the deviation substantially outweigh any detriment. N.J.S.A. 40:55D-70c(2); Kaufmann, supra, 110 N.J. at 553. The community must actually receive a benefit due to the fact that the variance represents a better zoning alternative for the property. Id. at 563.

Like a c(1) variance, a variance under c(2) is not justified when "merely the purposes of the owner will be advanced." Ibid.; Menlo Park Plaza Assocs., supra, 316 N.J. Super. 460. 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 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 zone plan. Kaufmann, supra, 110 N.J. at 565. Although zoning boards are not to utilize their discretion to rewrite ordinances that do not suit applicants and are to effectuate the goals of the community's zoning and planning ordinances, id. at 564, "[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. Absent a proven hardship, deviations from zoning requirements that advance the purposes of zoning can be approved under section c(2).

We have included the extended discussion regarding a c(2) variance because the Board argues plaintiff "failed to present sufficient competent evidence to both the Board and the trial court indicating that the state of the bulk variances would 'present an opportunity for improved zoning and planning that will benefit the community" under N.J.S.A. 40:55D-70(c)." This suggests a mistaken belief that plaintiff's application sought a c(2) variance. We reject this argument and note the basis of plaintiff's variance request rested solely on hardship, due to the narrow configuration of the property along with need to respect the existing structures lawfully on the lot, pursuant to N.J.S.A. 40:55D-70c(1)(a) and (c).

Plaintiff's proofs presented to the Board were that the narrowness of the property allowed construction only behind the existing home. Hampered by this physical constriction, plaintiff proposed to enclose the existing walled and fenced concrete patio. Additionally, plaintiff's concessions during the public bearing eliminated the requested side yard variances, as she agreed to meet the ordinance setback requirements of two and one-half feet on the property's east side, closest to the Kass' residence, and to retain the existing 6.9 foot setback on the west side. Although enclosing the patio exceeded the ordinance's provisions for total building and impervious coverage, the plan would not enlarge the existing impervious concrete slab. Therefore, the most significant remaining request necessary to construct the proposed modest addition was the rear yard setback, which required a twenty-five foot setback while 22.53 feet was proposed. The requests to deviate from the zone plan solely resulted from the undersized nature of the lot, an acceptable hardship under the statute.

Additionally, we note the trial judge erred as a matter of law when she dismissed plaintiff's action after concluding the "hardship" was personal to plaintiff. The record unmistakably supports the fact that the variance was necessitated because of the property's physical characteristics, not because plaintiff desired to deviate from the Borough's zoning plan.

Our review determines plaintiff's application met "the causation element," satisfying the positive criteria of c(1), as she proved "the need for the variance is occasioned by the unique condition of the property that constitutes the basis of the claim of hardship." Lang, supra, 160 N.J. at 56. We conclude plaintiff's proofs established the degree of hardship necessary to sustain a dimensional variance under c(1). Having satisfied the positive criteria delineated by c(1), plaintiff was not required to also prove the positive criteria for c(2).

We now examine the negative criteria. It is understood that every variance by definition constitutes a departure from and impairment of the zone plan. Nevertheless, our review of this record reveals nothing to support a finding that the configuration of plaintiff's home, if modified, created a structure so unusual or atypical from others in the neighborhood that it imposed a "substantial detriment to the public good" or impaired the intent and the purpose of the Borough's zone plan. N.J.S.A. 40:55D-70d.

Instead, the record includes expert proof from plaintiff's planner that the property conformed to others in this neighborhood of duplexes and, in fact, was one of the more highly maintained residences on the block. No one disputed the addition was "modest" and beautifully designed. Petersen's testimony that no detriment would ensue to the surrounding properties or the "intent and the purpose of the zone plan and zoning ordinance" was unrefuted. Moreover, plaintiff's application, as amended, met and exceeded all drainage requirements, fire code provisions, and light and view issues. The Board's naked conclusions to the contrary, as accepted by the Law Division judge, are unsubstantiated.

Therefore, the denial of plaintiff's bulk variance requests cannot be sustained. New York SMSA, supra, 370 N.J. Super. at 337. Accordingly, we reverse the May 5, 2008 Law Division order and direct an order be entered approving plaintiff's application, as amended for side yard setbacks and drainage provisions.


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