May 19, 2010
HENRY DUDLEY, PLAINTIFF-APPELLANT,
TOWNSHIP OF MANCHESTER, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY; DONALD CAIN, ZONING OFFICER OF THE TOWNSHIP OF MANCHESTER, NEW JERSEY; AND MICHAEL MARTIN, CONSTRUCTION OFFICIAL OF THE TOWNSHIP OF MANCHESTER, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1366-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2010
Before Judges Axelrad and Espinosa.
Plaintiff Henry Dudley sought a declaration that defendant Township of Manchester could not deny him a zoning permit for the construction of an addition based upon non-conformities on his property that were unrelated to the addition. He appeals from an order denying his motion for declaratory relief and directing that he exhaust administrative remedies. We affirm, essentially for the reasons set forth in the written opinion of Vincent J. Grasso, A.J.S.C.
We adopt the statement of facts set forth in Judge Grasso's opinion and note only the following salient facts.
In April 2008, Dudley began his efforts to obtain a zoning permit for the construction of a 621 square foot addition to his 1,299.55 square foot home in Manchester. Although an oversized lot, there are several non-conformities on the property that are not obviously related to the proposed addition. The non-conformities identified during Dudley's application process are: (1) front yard setback, as thirty feet is required by ordinance and the existing setback is twenty-five feet; (2) less than five feet side yard setback for a shed; (3) less than five feet side yard setback for a canopy used to shelter antique cars; (4) driveway less than five feet from side property line; (5) frame garage is 1040 square feet, exceeding the 1000 square foot maximum for such structures established by ordinance; (6) split-rail fence in front of property extends six feet into the Township right-of-way, while ordinance only permits fences to extend up to four feet.
It is undisputed that the lot is conforming and that the proposed addition itself does not violate any ordinances. Although the 25.10 foot front yard setback does not conform to the thirty foot setback now required, Township Ordinance 35-5 states:
GRANDFATHER CLAUSE: NONCONFORMING SETBACK.
Any single family dwelling on a conforming lot under this Chapter, which was constructed and in existence at the time of the adoption of the Amendment of the Zoning Ordinance in December, 1975, and which would be nonconforming solely by reason of the increase in front yard setback in the Zoning Ordinance of December 1975, and under this Chapter shall not be deemed nonconforming.
Based upon this grandfather clause, Dudley asserts that his house is conforming as well.
The thrust of Dudley's argument is that the house and proposed addition are conforming and that, since none of the non-conformities that exist elsewhere on the property will be exacerbated by the construction of the addition, the Zoning Board of Adjustment (the Board) should not consider those non-conformities in determining whether to issue a zoning permit.
However, as Judge Grasso correctly points out, the non-conformities on the property are not entitled to protection pursuant to N.J.S.A. 40:55D-68, because Dudley did not submit an application to the Board and has not met his burden of showing that the non-conformities existed prior to the adoption of the pertinent ordinances. Therefore, the non-conformities remained subject to review, either through the piecemeal approach of issuing citations for the various violations of ordinances, or through a more comprehensive and coordinated review in conjunction with the review of Dudley's application for a permit to build the addition. While, in some circumstances, a Board may find it appropriate to limit its consideration of issues on the property in the way Dudley advocates, the record here fails to support a conclusion that Manchester should be required to do so.
We recognize that authority exists for the proposition that a variance is unnecessary where the expansion of a nonconforming structure does not exacerbate the nonconformity, see William M. Cox, et. al, New Jersey Zoning and Land Use Administration § 11-4.1 (1989). However, particularly in light of the number of non-conformities on Dudley's property, we agree with Judge Grasso that the more persuasive authority calls for a variance application here. See Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 332-33 (App. Div. 2003); Engleside at West Condo. Ass'n. v. Land Use Bd. of Beach Haven, 301 N.J. Super. 628, 636 (Law Div. 1997).
In Engleside, the Law Division held that even an expansion of a nonconforming structure required a variance pursuant to N.J.S.A. 40:55D-70(c). 301 N.J. Super. at 636. The court reasoned that because the law "favors the ultimate elimination of nonconforming structures . . . any effort at expansion should be scrutinized." Ibid. "[G]ranting permits for expansion of nonconforming structures without giving the Board a chance to review the application precludes the opportunity to inquire into the appropriateness of the expansion[,]" and its potential impact on the zone plan and adjacent properties, an inquiry that is informed by the board's "peculiar knowledge of local conditions." Id. at 634, 636-37.
Such boards "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 167 (1992); D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Dudley's failure to exhaust remedies deprived the Board of the opportunity to exercise that discretion in a manner that encompassed the totality of the various non-conformities and proposed addition.
Pursuant to R. 4:69-5, Dudley was required to exhaust local administrative remedies before filing an action in the Superior Court unless "it is manifest that the interest of justice requires otherwise . . . ." See 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super. 320, 322 (App. Div. 1992). He has failed to show that the interest of justice required otherwise here. Moreover, because the dispute here is not solely a question of law but rather, centers on land use policy and the Board's implementation of that policy, "it is best if the record is made at the local level rather than in a trial court." Id. at 323.
We also agree with Judge Grasso that fairness dictates that, in the event that Dudley chooses to proceed before the Board, this matter should be listed and considered within sixty days. We add only the following concern. The history of Dudley's application over the last two years has unfortunately been marked by actions that might suggest to the suspicious mind a disinclination to ultimately grant Dudley relief. For example, as Dudley attempted to address the first three variances he was told were required, he was then confronted with the need for additional variances. We do not explicitly limit Manchester's consideration to the non-conformities identified to date. However, a pattern of new requirements for variances announced after prior requirements were addressed, if found, would be a relevant consideration if judicial review of the Board's actions is necessary in the future.
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