January 31, 2012
JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER AND ROBERT C. WERMERT AND VANESSA L. WERMERT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4707-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 18, 2012 -
Before Judges Payne, Reisner and Hayden.
Plaintiff, Jesse Rosenblum, appeals pro se from an April 11, 2011 order of Judge Conte affirming the decision of the Zoning Board of Adjustment of the Borough of Closter (Board) granting variance relief to Robert and Vanessa Wermert.
The record discloses that the Wermerts purchased the property in question in 1999, having been tenants there for a period of ten years. The property had been used, throughout the Wermerts's occupancy, as a two-family residence. However, although two-family residences were conditionally permitted in the Residential "B" Zoning District in which the residence was situated, that use for this particular property was not permitted in the zone because the structure and land did not comply with the bulk requirements of the zoning ordinance. The required side yard setback of fifteen feet was deficient by 2.38 feet; the impervious coverage limit for the zone of thirty percent was exceeded by 5.67 percent; and the authorized percentage limit for accessory structures in relation to principal structures was thirty percent, whereas the accessory structures on this property exceeded that limit by thirty-two percent.
The difficulties arose principally because the residence had been initially constructed on an irregularly-shaped lot at a location that was too close, on one side, to a brook. Thus, the house could not conform to local zoning without being moved. The excess amount of impervious coverage was not the result of the size of the residence, but rather, the existence of a driveway with a turn-around area that would have to be eliminated to meet zoning requirements, thereby requiring cars to exit the property onto a busy street by backing out, not driving forward. Thus, the driveway as configured had a safety purpose. Additionally, the government held an easement in the front of the property for expansion of a bridge, which increased the percentage of the lot covered by an impervious surface by reducing the effective size of the lot.
The lot itself was oversized, at 16,700 square feet, whereas the minimum size requirement was 12,500 square feet. Additionally, building coverage was 8.8 percent, whereas the maximum coverage permitted in the zone was twenty percent. Whereas a floor area ratio (FAR) of 0.35 was permitted, this dwelling had a FAR of 0.18.
The Wermerts were able to offer proof that a two-story dwelling existed on the property prior to the adoption of the Borough's zoning code in 1940. However, they were not able to establish that the dwelling had been used for two-family occupancy at that time, and they were therefore unable to establish the existence of a legally recognized non-conforming use.
A public hearing was held on the Wermerts's application by the Board on March 17, 2010. At the hearing, exhibits were introduced into evidence and testimony was given by Robert Wermert, by the Wermerts's planner, Kenneth Ochab, AICP, P.P., and by Jesse Rosenblum, who appeared in opposition to the application and who both questioned the witnesses and gave testimony in support of his position.
At the conclusion of the hearing, the Board voted unanimously to grant the necessary use and bulk variances, pursuant to N.J.S.A. 40:55D-70c and -70d(1), and they later memorialized their position in a detailed resolution, approved on April 21, 2010. In that resolution, the Board concluded that the site was particularly well suited for the use, as evidenced by the fact that the property had been used as a two-family residence for over twenty years, and that all of the bulk non-conformities were pre-existing, not newly established. The lot was oversized, the side-lot deficiency had been created by the initial siting of the residence, and the excessive impervious coverage was justified by safety concerns in exiting the property and the need to maintain the existing easement.
The Board found that the use created no substantial impact on the neighbors, because there were none on the brook side and, elsewhere, there were landscape and fence buffers. Additionally, the house appeared from the exterior to be a single-family one, and its two-family use fit within the pattern of the neighborhood, which contained several other two-family properties.
The Board also found that the lot's use as a two-family dwelling met the goals of the Master Plan, which allowed for a variety of housing types while protecting neighboring properties. Further, it promoted the goals of the Municipal Land Use Law, in that it provided for sufficient space and appropriate locations for a variety of uses, and it allowed for appropriate population densities. Although the property was not restricted to use as Mount Laurel*fn1 housing, the Board found "the second floor dwelling on said property provides the characteristics of affordable housing, including approximately 900 square feet of living space for a two bedroom tenancy at an affordable price, all while creating a reasonable limit on the intensity of the use and its effect on the neighborhood and school district."
In an action in lieu of prerogative writs, Rosenblum unsuccessfully challenged the Board's action. Following a oneday bench trial, Judge Conte issued an extensive written opinion in which he discussed the positions of Rosenblum, the Wermerts and the Board at length. After doing so, the judge concluded that the evidence presented was insufficient to establish that the Board's action in granting the requested variances was arbitrary, capricious or unreasonable. In reaching this conclusion, the judge found that the Wermerts had proven both the positive and negative criteria applicable to their variance requests. The judge found that the site was particularly suitable to the proposed use, in that it had been used for two-family occupancy for over twenty years; the bulk non-conformities and the two-family use were pre-existing, and no other non-conformities were proposed; and the placement of the existing residence created a side yard deficiency that was a pre-existing hardship. Moreover, the house had been used for at least twenty years without detriment to the surrounding area. Additionally, the judge found that the use promoted the goals of the Municipal Land Use Law in that it permitted adequate light, air and open space and it promoted the establishment of appropriate population densities.
Additionally, Judge Conte found that the Board had appropriately applied the statute's negative criteria, thereby establishing that the variance could be granted without substantial detriment to the public good and that it would not substantially impair the intent and purpose of the zone plan and zoning ordinance. In this regard, the judge discussed the fact that the residence appeared to be single family, it was well-buffered, and its use would not be inconsistent with the Master Plan and Zoning Code, which allowed "for a variety of housing types while protecting neighboring properties." Additionally, the judge approvingly noted the Board's rationale for permitting the excessive impervious coverage. While the judge recognized that the Board had not specifically addressed the bulk variances, he found that fact was insufficient to change his decision, and that the grant of such variances was legally and factually justified.
As a final matter, the judge addressed Rosenblum's concern that the Board was zoning by variance, and that the grant of this particular use variance provided precedent for other conversions. In this regard, the judge noted that the house had long been in two-family use, and that such use would have been permitted under the zoning plan if the need for bulk variances as the result of pre-existing conditions had not manifested.
Further, he noted that if other property owners sought the same relief, they would be required to undergo the same review process that the Wermerts had undergone. That one or more of such applications might be approved provided no grounds for overturning the Board's determination here.
Rosenblum has appealed, making the following arguments:
I. THE ZONING ORDINANCE DISCOURAGES ARBITRARY CONVERSIONS OF SINGLE-FAMILY RESIDENTIAL 'B' DWELLINGS.
II. THE APPLICANT HAS NOT DEMONSTRATED SPECIAL REASONS FOR A 'D' VARIANCE.
III. THE APPLICANT HAS NOT SATISFIED THE NEGATIVE CRITERIA.
IV. THE APPLICANT HAS NOT DEMONSTRATED HARDSHIP OR A MODIC[U]M OF SOUND ZONING TO SECURE A 'C' VARIANCE.
V. MANY ISSUES THAT THE TRIAL COURT WEIGHTED AND FACTORED INTO ITS DECISION HAD DIFFERENT OUTCOMES IN CASE LAW.
After carefully considering Rosenblum's arguments, as set forth in his brief and expressed in court, we affirm, substantially on the basis of Judge Conte's comprehensive and well-reasoned opinion. We are satisfied, in light of the lengthy history of the use of the property as a two-family dwelling and its compatibility with surrounding properties, that the Board's determination to grant the necessary variances was appropriate. In our view, the fact that the Master Plan envisioned a variety of housing types in the Borough and that the Zoning Plan permitted two-family residences in the zone as a conditional use provides additional, significant grounds of support for the Board's decision.