On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-709-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Plaintiffs Troy Endreson, Ardith Livi, Peter Devine, and Christopher A. Phillips contend that the court erred in holding that defendant James Walsh (Walsh) was not obligated to offer his property for sale to plaintiffs as adjoining property owners as a condition precedent to the grant of variances pursuant to N.J.S.A. 40:55D-70c(1) and (2) (referred to as c(1) and c(2) variances) by defendant Dover Township Zoning Board of Adjustment (the Board) and that the variances granted were arbitrary, capricious and unreasonable.*fn1 We disagree and affirm.
Walsh is the owner of lot 1, block 708.10, on the tax map of the Township of Dover,*fn2 otherwise known as 1210 Riviera Drive, Toms River, and has owned the property for over twenty years. His home, which was built in 1922, is a pre-existing, nonconforming structure that was damaged by fire in February 2003. The fire damaged the interior of the home, but the exterior was left intact. The existing home can be repaired. However, Walsh wishes to demolish the house and construct a new home on the property. Accordingly, on October 17, 2005, he applied to the Board pursuant to N.J.S.A. 40:55D-70c to remove the existing home, construct a new home with nearly the same footprint, and install an in-ground swimming pool.
The property is about twenty-five feet wide and 150 feet deep. The lots on each side are considerably larger. The existing home was set at an angle on the lot with one point only one and one-half feet from the front property line on Riviera Drive and other points only three-tenths of a foot from the side property lines. The house has a six-foot-high basement with the basement floor at street level. The second and third floors both have living space. At the second floor level is a deck which extends to the front property line and affords the occupants "spectacular views of the Toms River." Across the street from the subject property is a public beach on the north shore of the Toms River.
The deck of the proposed house will be five and three-tenths feet from the front property line with the proposed house itself set back twenty-five feet and set parallel to the side property lines with a side yard setback of two and one-half feet. It will be narrower than the existing home by eight and four-tenths inches. The first floor will have a garage, playroom, bathroom, and storage closet. The second floor will have a large kitchen/living room, one bedroom, a bathroom, a laundry room, a storage/coat closet, and two decks--one large deck in the front and one small deck in the back. The third floor will have three bedrooms, a bathroom, and a small deck in the back. Overall, the proposed home will be twenty feet wide by seventy-seven feet deep, including both decks. The height of the house will be slightly over twenty-nine feet, well within the thirty-five-foot height ordinance limitation. Bulk variances are required for the house and pool. The zoning ordinance requires a fifty-foot frontage on the road. The house without the decks meets the thirty-five percent lot-coverage limitation, but the decks are required to be included in the lot-coverage area because they are more than thirty inches above the ground, necessitating a variance.
The Board considered Walsh's application on December 8, 2005. To accommodate the objectors' concerns, Walsh agreed to amend the plans to eliminate the need for a variance for the pool and to move the house two feet further back from the street. The Board received advice from its attorney that Walsh was not required to buy additional property or offer to sell his property to Devine as a condition for securing the necessary c(1) variances.
The Board unanimously approved Walsh's application on December 8, 2005, and adopted a resolution to that effect on January 12, 2006. The Board concluded that "the relief requested can be granted without substantial detriment to the public good and without being inconsistent with the intent and purpose of the Township's Master Plan and Zoning Ordinance." The Board further concluded that strict application of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92, and the Township Zoning Ordinance to the lot in question would result in exceptional difficulties or hardship on Walsh. The Board found that the variances were necessitated by the extreme narrowness of the lot. Thus, it granted Walsh's application for c(1) variances for deficient lot area, lot width, lot frontage, front setback, side setback, combined side setback, and excessive lot coverage.
Plaintiffs filed an action in lieu of prerogative writs on February 22, 2006. Following a conference on February 7, 2007, the matter was remanded to the Board on February 21, 2007, to consider whether Walsh's application should be granted variances based upon the criteria set forth in N.J.S.A. 40:55D-70c(2). On April 26, 2007, Walsh presented additional testimony from his engineer, John Ernst. Ernst testified that the proposed house will be better positioned on the lot with the footprint parallel to the lot lines, side-yard setbacks of two and one-half feet rather than three-tenths of a foot, and the front setback twenty-five rather than thirteen feet. He opined that the benefits outweighed the detriments and that the proposed house would provide better visibility, safety, and clearance for traffic on the street.
Plaintiffs called their own planner, Richard Lapinski, to testify before the Board on remand. He opined that the new structure was not in keeping with the general character of the neighborhood and that the improvements were insubstantial. He further opined that there was no benefit to changing the current footprint of the home. Plaintiffs also called an appraiser, Robert Kirwan, who opined that the subject lot was worth $205,000 with a variance. Peter Devine, who lives next door at 1212 Riviera Drive, testified and offered to purchase the lot at that value in order to alleviate the hardship in accordance with long-extant case law covering nonconforming vacant lots. The Board then adjourned the hearing to conduct a site inspection.
The Board reconvened on May 10, 2007, and various Board members commented upon their inspections: Robert Alston commented that the existing building is right up to the property lines and the proposed new footprint would constitute a significant improvement in the neighborhood, which already had a number of three-story homes. Nels Luthman concurred with Alston's observations and commented that "there are other three stories that are starting, that are already in the neighborhood and so I don't see it totally being inconsistent." Linda Stefanik, the chairwoman, commented that homes in the area are either brand-new construction as the result of tearing down existing homes or renovations "and they are all quite large for the size of the lots." She observed that the majority of lots are undersized, which is a hardship for Walsh, and Walsh could have renovated his home and probably would not have been restricted from increasing the size by building up. She concluded that what Walsh was proposing to do was common for the area and the new footprint would be an improvement.
The Board deliberated and concluded unanimously that the lot was not vacant and, thus, Walsh was not required under existing case law to offer the lot for sale to adjoining property owners in order to alleviate the hardship. The Board concluded that c(1) and (2) conditions existed and that moving the house back, increasing the side yard setbacks, and building above the flood plain would improve the general nature of the neighborhood. The Board unanimously decided that the application met the criteria for c(1) and (2) variances and approved Walsh's application.
The Board adopted a resolution on May 24, 2007, ratifying its prior decision. It found that the grant of a c(2) variance was consistent with the MLUL as construed by Kaufmann v. Planning Board for Warren, 110 N.J. 551 (1988), and Bressman v. Gash, 131 N.J. 517 (1993). The Board again found that "the relief requested can be granted without substantial detriment to the public good and without being inconsistent with the intent and purpose of the Township's Master Plan and Zoning Ordinance." The Board further concluded that strict application of the MLUL and the Township Zoning Ordinance to the lot in question would result in exceptional difficulties or hardship on Walsh. The Board again found that the variances were necessitated by the extreme narrowness of the lot, justifying the c(1) variances, and made the following findings of fact respecting c(2) variances:
2. The Board finds that the construction of a new home on the property will have benefits, which substantially out weigh [sic] any detrimental affect which might be perceived by the construction of a new home. The construction of the new home will be further from the sidelines than the existing home and 5 feet from the road. The removal of the house from the roadway ...