June 4, 2010
JOHN BAZIOTIS AND BARBARA BAZIOTIS, HIS WIFE, PLAINTIFFS-APPELLANTS,
ZONING BOARD OF ADJUSTMENT OF THE VILLAGE OF RIDGEWOOD, SETH GROSSMAN AND ANNE MATEJKA GROSSMAN, HIS WIFE, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4178-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 27, 2010
Before Judges Wefing, Grall and LeWinn.
Plaintiffs John and Barbara Baziotis appeal from a judgment entered in favor of defendants, the Zoning Board of Adjustment of the Village of Ridgewood and Seth and Anne Matejka Grossman. The judgment was entered on plaintiffs' complaint challenging a variance granted pursuant to N.J.S.A. 40:55D-70c(2). The variance permits the Grossmans to replace an in-ground swimming pool located in their front yard with an "activity/ball court."*fn1
Under Section 190-119(C)(1)(c) of the Code of The Village of Ridgewood (hereinafter Ridgewood Code), both structures are prohibited in any front yard in any residential zone. Because the Board's balance of the benefits and detriments pertinent to a c(2) variance is premised on a factual finding not supported by the record, we reverse and remand for reconsideration of the application.
The Grossmans' property is located on South Murray Avenue. When they purchased the lot in 2004, the in-ground pool had been in place for decades. Since 2004, the Grossmans have installed fencing, child safety locks and landscaping in order to minimize the risk associated with a pool and establish a visual and sound barrier around the pool and its cracked cement deck.
To better meet the needs of their children and eliminate the risks associated with a pool, the Grossmans sought a variance to build an "activity/ball court" within the existing footprint of the pool and its deck. The "court" they propose will cover an area of fifty feet by thirty feet with an asphalt surface painted in a color that blends with the landscape. The surface will be no higher than six inches from ground level and the only structure will be a single hunter-green basketball backboard mounted on a pole. The existing fencing, locks and landscaping will be kept in place and there will be no lights.
Plaintiffs were the only objectors. They previously owned the Grossmans' property and live on an adjacent lot. In 1987, the lot now owned by the Grossmans was subdivided from a larger parcel then owned by plaintiffs.
Prior to the 1987 subdivision, the pool was situated where it is now, in a front yard. Plaintiffs' subdivision was approved by a resolution of the planning board dated August 18, 1987. In addition to the subdivision approval, the 1987 resolution memorializes a grant of a variance related to the swimming pool. That variance, however, is from a provision of a prior Code - "Chapter 29 Section 29-16[, which,] require[d] that any swimming pool must be located at least 10 feet from any property boundary line."
According to the 1987 resolution, the only variance relief requested and granted at that time was a one-foot deviation from the ten-foot setback for pools. The 1987 resolution does not include a reference to the pool being in the front yard of the Grossmans' lot or to a deviation from any provision of the zoning law then in effect prohibiting a pool in a front yard.
As noted at the outset of this opinion, the Grossmans sought relief from Section 190-119(C)(1)(c) of the current Ridgewood Code. With respect to "[a]ccessory structures in residential zones" it states:
No accessory building shall be permitted in any front yard. Swimming pools, tennis courts, decks, patios, and similar play structures shall be prohibited in any front yard; provided, however, that basketball equipment which utilizes a permitted driveway on the lot as the play surface is exempt from this prohibition.
Section 190-124(G) of the Ridgewood Code also addresses "[r]ecreational facilities for residential uses." In pertinent part it provides:
Recreational facilities basketball courts, handball courts, paddleball courts, platform tennis courts, racquetball courts, tennis courts and similar recreation facilities accessory to residential uses and designed to serve the residents on the premises, when permitted, shall comply with the following requirements. Notwithstanding the above, basketball equipment which utilizes a permitted driveway on the lot as the play surface is permitted in the same zone districts as the foregoing recreational facilities, but is not subject to the following requirements . . . .
(1) The recreational facilities shall be permitted only in the rear yard.
Despite these restrictions, the Board granted the Grossmans' application for a variance pursuant to subsection c(2) of N.J.S.A. 40:55D-70.*fn2 The propriety of a c(2) variance depends upon the balance of harms and benefits. A grant must be upheld "if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 565 (1988). More specifically, upon a showing that a "variance . . . 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," a c(2) variance for a specific property may issue if "the purposes of [the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163,] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." N.J.S.A. 40:55D-70c(2).
In granting the Grossmans approval to replace the pool with a "ball/activity court," the Board balanced the relative harms and benefits. But in assessing the impact of the proposed project, the Board started with the assumption that the pool was lawfully in place as authorized by the variance granted to plaintiffs in 1987 at the time of the subdivision. That unsupported assumption of fact, referenced in paragraphs four and eight of the "findings of fact" included in the Board's resolution, was critical to the Board's assessment of the relative benefits and harms.
The Board contrasted the positive and negative impact of the existing swimming pool with the positive and negative impact of the "ball/activity court." In the seventh paragraph of its findings, the Board noted that the proposed structure "will not have any more of an effect on the surrounding properties than the current swimming pool." And, in the eighth paragraph, the Board determined the project would have the benefit of "eliminating the swimming pool" approved in 1987 and substituting "a safer area."
The difficulty is that the factual assumption underlying the Board's balance of benefits and detriments is not supported by the record. As noted above, the only variance granted in the 1987 resolution is a deviation from the required setback. There are several possible explanations - the front-yard violation was overlooked; the prohibition against front-yard pools was not in effect; or the pool was conforming when built and deemed permissible as nonconforming without a variance pursuant to N.J.S.A. 40:55D-68. Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 660-61, 663 (1991). The options available to the Grossmans as owners of a structure approved by variance and owners of a "nonconforming" structure are quite different. See Stop & Shop Supermarket Co. v. Bd. of Adjustment, Twp. of Springfield, 162 N.J. 418, 431-35 (2000).
In any event, the ultimate balance struck by the Board is premised on its finding that the pool in the front yard was authorized by a 1987 variance which indicated the planning board's approval of the pool's location. The Board assessed the relative benefits and harms as if there were only two options -
1) a pool in the front yard and a "ball/activity court" in the rear yard or 2) either a pool or a "ball/activity court" in the front yard.
"[A]n overriding principle governing judicial review of variance decisions by boards of adjustment is that, assuming an adequate basis in the record for a board's conclusions, deference to the judgment of local zoning boards ordinarily is appropriate." Lang v. Zoning Bd. of Adjustment of Borough of N. Caldwell, 160 N.J. 41, 58 (1999). That "deference to local boards," however, "is predicated on the existence of adequate evidence in the record supporting the board's determination either to grant or deny variance relief." Ibid.
Because the Board's reasons for granting this variance rest so squarely on a fact that lacks the requisite support in the record, we reverse and remand for reconsideration. The remand should not be understood as an expression of our view on the merits. We simply have concluded that the Board members, who are familiar "with their community's characteristics and interests" and are the "proper representatives of its people," should have an opportunity to reconsider the application and its resolution in light of the actual significance of the 1987 variance. Id. at 58 (quoting Kramer v. Bd. of Adjustment of Borough of Sea Girt, 45 N.J. 268, 296-97 (1965)).
We note that neither party has argued the precise point on which we direct this remand. This court, however, has an obligation to review the record and cannot ignore a conflict between the evidence of record and a fact the Board found pivotal on this appeal. Plaintiffs seek reversal on the ground there is no support in fact or law for the Board's resolution and that the Grossmans failed to satisfy the negative criteria pertinent to a c(2) variance.
Reversed and remanded for reconsideration. We leave the scope of the proceedings on remand to the sound discretion of the Board to be exercised in conformity with the MLUL.