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Jeffrey R. Jerman v. Zoning Board of Adjustment of the Township of Berkeley

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 20, 2011

JEFFREY R. JERMAN, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BERKELEY, DEFENDANT-APPELLANT, AND THE TOWNSHIP OF BERKELEY, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3344-09PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2010

Before Judges Yannotti and Skillman.

The Zoning Board of Adjustment (Board) of the Township of Berkeley (Township) appeals from an order entered by the Law Division on March 31, 2010, which reversed the Board's denial of an application by plaintiff Jeffrey R. Jerman for certain variances required to construct a single-family residence on an undersized and unimproved lot in the Township. We affirm.

Plaintiff is the owner of certain property in the Township, known as Lot 13, Block 565. The property is in the Township's R-125 zone. The Township's zoning ordinance requires, among other things, that a single-family dwelling in the R-125 zone have an area of 12,500 square feet and frontage of 100 feet. Plaintiff's property has an area of 9000 square feet and frontage of fifty feet. Previously, plaintiff had applied to the Board for variances and design waivers required to construct a single-family house that was thirty-feet wide and two stories tall. The Board denied the application, and the trial court upheld its decision.

Thereafter, plaintiff submitted an application to the Board for variances required to construct a smaller structure on the site. On July 22, 2009, the Board conducted a public hearing on the application. At the hearing, plaintiff testified that he sent letters to the adjoining property owners seeking to purchase their lands or to sell his lot to them in order to make the property conform to the Township's zoning requirements.

Plaintiff said that one adjacent property owner did not reply. Another refused to sell a portion of his lot but offered to sell his entire lot to plaintiff for $130,000. The other adjacent property owner, Mitchell Horowitz (Horowitz), offered to purchase plaintiff's property for $5000.

Plaintiff said that he had informed Horowitz about the procedure they would follow if he wished to purchase his property. Plaintiff told Horowitz that they both would obtain appraisals of the value of the lot, but the property must be appraised as if the Board had granted the variances he requested.

Plaintiff asked the Board to admit an appraisal he had previously obtained for the property. However, the Board refused to do so without testimony from the appraiser.

Plaintiff also presented testimony from Jeffrey Daum (Daum), a professional engineer and planner, who explained that the plans for the house had been revised from those previously considered by the Board. The house had been reduced in size to twenty-four feet in width. The building was two stories, which Daum said was in keeping with the character of the neighborhood. Daum asserted that, without the variances requested for lot size and frontage, the property "would be zoned into inutility."

Daum stated that there were other undersized lots in the area, including lots that are fifty foot by 100 feet or smaller.

Daum additionally stated that the proposed structure met all of the Township's zoning requirements for side yard and front yard setbacks. He said that the house "fits in with the neighborhood," and would be consistent with the intent of the Township's zoning plan. Daum added that there would be no detriment to the public good in the event the house was constructed as planned.

Horowitz appeared at the hearing and voiced his opposition to plaintiff's application. Horowitz stated that the Board should not grant the variances because they would "substantially impair the intent and purpose" of the Township's zone plan and ordinance. Horowitz asserted that plaintiff's new application was not substantially different from his earlier application, which had been denied.

Horowitz also stated that he had offered plaintiff $5000 for his property "as if the variance[s] had not been granted." He said that, in the event the Board denied the variances, he "would be prepared to pay the full market value of [the] property as if the variance[s] had not been granted." Horowitz added, however, that he had not obtained an appraisal of the property's value. He stated that he believed the property had been assessed for tax purposes at $3000. He additionally stated that he was informed that plaintiff had paid $1800 for the lot.

The Board voted to deny plaintiff's application. In a resolution dated August 26, 2009, which memorialized its decision, the Board found that plaintiff had not met his burden of proof under N.J.S.A. 40:55D-70(c)(1) or (c)(2) for issuance of the variances. The Board further found that the variances sought could not be granted "without impairing the intent and purpose of" the Township's zone plan and ordinance.

Plaintiff thereafter filed this action in the Law Division, seeking reversal of the Board's determination. The trial court considered the matter on March 2, 2010, and on March 22, 2010, filed a letter opinion and order reversing the Board's decision.

In its opinion, the trial court stated that the parties had agreed that the sole and dispositive issue in this case was whether plaintiff had established that he made reasonable efforts to bring his property into conformity with the Township's zoning requirements by either acquiring an adjoining lot or selling his property to an adjoining landowner at a fair and reasonable price. The court also stated that the Board had stipulated that if the court found that plaintiff had satisfied his burden of proof on this issue, it was obligated to grant the variances sought.

The court determined that, based on the record before it, the Board had acted arbitrarily, capriciously and unreasonably in denying plaintiff's application. The court stated that plaintiff met his burden of proof with regard to his obligation to purchase the adjoining property or sell his land to an adjoining property owner at fair market value. The court entered an order dated March 31, 2010, memorializing its decision.

On appeal, the Board argues that: 1) the Board's decision denying plaintiff's application is entitled to a presumption of validity; 2) plaintiff did not satisfy the requirements under N.J.S.A. 40:55D-70(c)(1) for a hardship variance; and 3) if the Board erred by not granting plaintiff a conditional variance, the matter should be remanded to the Board for a determination of the fair market value of plaintiff's property.

We have thoroughly considered the record in light of the applicable law and the arguments of counsel, and conclude that the Board's arguments are without merit. We accordingly affirm the trial court's order of March 31, 2010, substantially for the reasons stated by the court in its letter opinion dated March 22, 2010. We add the following.

Here, plaintiff sought variances pursuant to N.J.S.A. 40:55D-70(c)(1) so that he could construct a single-family residence on an undersized lot. The statute provides:

Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (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 pursuant to [N.J.S.A. 40:55D-62 to -68.6] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the zoning board may] 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. . . . [Ibid.]

A property owner's efforts to bring his property into compliance with the zoning regulations is relevant to whether application of the regulations would result in an "undue hardship." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 594 (2005). Attempts by the property owner to acquire additional land or sell his property to adjacent landowners may be considered in determining whether the zoning regulations result in an "undue hardship." Ibid. An "undue hardship" does not exist if the owner of adjacent land refuses to sell the land at a "fair and reasonable" price. Ibid. Furthermore, an "undue hardship" does exist if the owner of the non-conforming lot offers to sell his property at a "fair and reasonable" price and the adjoining property owners refuse to make a reasonable offer therefore. Ibid.

Therefore, a zoning board may, in its discretion, recognize a property owner's offer to sell his land or offer to purchase the land of an adjoining property owner by conditioning the grant of a variance upon such sale or purchase. Ibid. Rather than establishing fair market value for the purpose of granting a conditional variance, a zoning board may consider whether the owner has offered to sell his land to the adjoining property owners at its fair market value, assuming that the variances required for its development have been granted. Id. at 594-95. "Undue hardship" generally exists if the offer is rejected. Ibid.

In this matter, plaintiff established that he had offered to purchase the properties of adjoining landowners. He also offered to sell his lot to the adjacent property owners. It is undisputed that, because the adjacent properties on each side of plaintiff's lot are developed with residential homes, plaintiff could not purchase vacant property to cure the lack of sufficient frontage on his lot. It is also undisputed that one adjoining property owner, Horowitz, offered to purchase plaintiff's lot at its fair market value, but his offer was not based on the value of the land as if the Board had granted variances required for its development.

The Board argues that, in order to establish the "undue hardship" required for the variances, plaintiff had to present an appraisal establishing the fair market value of the property. As noted, at the hearing before the Board, plaintiff endeavored to submit an appraisal of the property that he had previously obtained but the Board refused to allow him to do so without the testimony of the appraiser. The Board contends that, without evidence as to the fair market value of the property, it could not compare the appraised value of the property with Horowitz's offer or find that plaintiff would suffer "undue hardship" if variance relief was denied.

We disagree. Plaintiff would have been required to present an appraisal, along with testimony of the appraiser, to establish the fair market value of the property if Horowitz had made an offer to purchase plaintiff's land in accordance with the principles set forth in Jock. Horowitz did not make such an offer. Horowitz offered $5000 for plaintiff's property, and stated that he would be willing "to pay the full market value of that property as if the variance had not been granted."

Therefore, the record supports the trial court's finding that plaintiff presented sufficient evidence to show that he attempted to bring his lot into conformance with the applicable zoning regulations. The court thus correctly determined that plaintiff had carried his burden of establishing that he would suffer "undue hardship" if the variances he sought were denied.

We have considered the Board's other contentions and find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20110120

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