On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5415-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2010
Before Judges Reisner and Sabatino.
Plaintiffs Keith and Liesel Fernandez appeal from a July 16, 2008 order dismissing their complaint seeking to set aside a stop construction notice issued by the Township of Bloomfield and challenging the Township Zoning Board of Adjustment's decision denying their variance application. We affirm.
Plaintiffs' house is located in a neighborhood of small homes, built relatively close to each other, on small irregular-shaped lots. Plaintiffs applied for and obtained a zoning permit on March 21, 2006, and a construction permit on May 9, 2006, to add a second floor bedroom to their house. With the approval of the municipal building inspector, they began construction, which included columns to support the new bedroom. However, a few weeks later, on June 23, 2006, the Township zoning officer issued a stop construction order, asserting that the project did not meet the bulk and setback requirements of the local zoning ordinance. Plaintiffs applied for variances, which the Zoning Board denied after a two-day public hearing.
The following pertinent evidence was introduced at the Board hearing. Plaintiffs' expert, Roger DeNiscia, a licensed professional planner, testified that plaintiffs' residence was located on an irregular-shaped lot, which constituted "an unusual, or unique condition." The irregular-shaped lot resulted in "varied," "totally different" setbacks, which "makes it very difficult to develop" the property. DeNiscia "concluded that it's only because of the size of the lot and its shape that create[d] the need for a variance." He also opined that granting the variance would not block the sunlight available to neighboring houses or otherwise have a negative effect on the surrounding properties. Therefore, he reasoned that the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, authorized the Board to grant a variance. However, he admitted that if he had been asked to design the addition, he might have been able to design a structure that conformed to the zoning ordinance.*fn1
The objectors' expert, Karen Rosenberger, a professional planner, challenged DeNiscia's assessment of the uniqueness of plaintiffs' lot. Rosenberger testified that the lots in that zone "are all small, undersized, irregular lots" and, therefore, "the light and space and air for all of these people is compromised by what happens on adjacent property." Rosenberger added that the addition does not fit "within the context of the neighborhood." Based on these and other factors,*fn2 Rosenberger concluded that plaintiffs did not present "a viable proposal."
The application was also the subject of vociferous opposition from many of plaintiffs' neighbors. One of the neighbors testified that he "used to be able to go into [his] backyard and look up and see the sky. Now, [he] see[s] what looks like a ski lodge." Plaintiffs' rear neighbor testified that the addition compromised the "little privacy" afforded to residents in the zone. The neighbor described the addition as "a watch tower, peering [into] the nearby houses, imposing on everyone's privacy." Other residents echoed these sentiments, and added that the addition did not conform "with the character of the houses in the neighborhood." They also complained that the addition overshadowed their back yards and blocked their views of the neighborhood. One neighbor testified that the addition blocked the sun in such a way as to limit the hours during which he could use the pool in his back yard.
Following the public hearings, the Board denied the application. The Board noted that plaintiffs' residence was located on an "irregular lot" and that construction of the addition was "substantially completed" when the Township issued the stop construction notice. The Board, however, denied the application, based on its conclusion that the "addition would be a substantial detriment to the public good because . . . it denies neighboring property owners adequate light, air and open space." The Board also determined that the "addition would invade the privacy of neighboring property owners."
The Board based its legal conclusions on its factual findings that "the addition hovers over the rear yard of the adjoining property to the west" and "affords a view of the rear yard of the adjoining property to the east," both of which are conditions that "did not exist prior to the construction of the addition." The Board relied in part on photographs of the addition and the surrounding neighborhood.*fn3 Ultimately, the Board ruled that although plaintiffs "may meet the positive criteria due to the irregular shape of their lot, they cannot meet the negative criteria due to the substantial detriment to the public good resulting from the addition." The Board also concluded that "[t]he negative impact of the addition far outweighs any positive impact."
Before the Law Division, plaintiffs contended that the Board was equitably estopped from denying their variance application, and that the denial was arbitrary and capricious. In a thorough oral opinion issued May 16, 2008, Judge Giles disagreed.
Addressing the estoppel issue, Judge Giles first rejected plaintiffs' argument that any zoning violation was de minimis, finding that "the dimensions of the addition existing in the plan submitted to the Township, the surveys before and after construction, and the photographs marked into evidence showing various stages of construction clearly show that the side, rear and bulk deviations from the zoning ordinance are not 'de minimis.'" Judge Giles further concluded the Township's zoning ordinance was "plain and unambiguous and required no interpretation and was not the subject of any debate as to interpretation when the permits were issued or at any time." In other words, there was no arguable legal basis to issue the zoning permit. Judge Giles further found that the Township, "rather than sitting back and doing nothing," proactively inspected the addition to ...