October 17, 2013
JESSE ROSENBLUM, Plaintiff-Appellant,
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER and STEVEN PANAGI, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6845-11.
Jesse Rosenblum, appellant pro se.
Kates, Nussman, Rapone, Ellis & Farhi, LLP, attorneys for respondent Zoning Board of Adjustment of the Borough of Closter (Michael B. Kates, of counsel and on the brief).
Donna J. Vellekamp, attorney for respondent Steven Panagi, joins in the brief of respondent Zoning Board of Adjustment of the Borough of Closter.
Before Judges Lihotz and Guadagno.
Plaintiff Jesse Rosenblum, a resident of the Borough of Closter (Borough), appeals from an order dismissing his action in lieu of prerogative writs, in which he challenged the final determination of defendant Zoning Board of Adjustment of the Borough of Closter (Board). We affirm.
The Board considered an August 4, 2010 application filed by Steven Panagi, requesting a use variance to authorize two independent residential living units in a single structure. The property, built as a single family home in 1924, was located in zoning district Residence Area B, which conditionally permitted two-family dwellings. Borough of Closter, N.J., Zoning Code § 200-9.
At some point Panagi's dwelling was converted to two separate residential units. The date of conversion was uncertain, however, Borough records confirmed since 1990 the property had continuously been assessed as a two-family dwelling unit. The two units were distinct with no internal connections, had separate kitchens and furnaces, and individually metered utilities. Panagi purchased the property in 2006, and was provided a certificate of occupancy for a two-dwelling structure, which he simply continued. When his tenants changed, he applied for a two-family use ratification. The Board denied his application. He learned this particular property had not been approved, nor did it qualify as a two-family dwelling because the structure and land did not comply with the bulk requirements for Residence Area B. Panagi was instructed to apply for a variance.
Despite its nonconformance to the conditions for structures in the zone regarding frontage, side-yard setback, and lot size, Panagi applied for use variances pursuant to N.J.S.A. 40D:55-70d(1), to sanction the dwelling's use as a two-family residence. The Board held public hearings over two days. Panagi testified he personally owns the home, but uses it as an investment property. He described the neighborhood as fully developed, which included a variety of mixed uses among neighboring properties, such as two-family dwellings, commercial properties, and single family homes.
Panagi also presented testimony from his professional planer Steven M. Lydon, P.P., of Burgis Associates, Inc., who addressed the positive and negative aspects of the requested variance. Lydon noted the property was located in a split zone, which allowed residential and commercial use. The proposed application was well suited for the proposed use, despite that it was undersized and the setbacks were nonconforming for a two-dwelling residence.
Additionally, special reasons were present to allow the structure and grant the application. Lydon noted the lot was extremely narrow, which caused a substantial hardship in meeting the zone's bulk requirements. This hardship could not be overcome because all of the surrounding area was developed. Further, the proposed two-family use was permissible in the zone and did not conflict with the Borough's master plan; the application proposed no change to the structure that would intensify the use; and essentially bulk variances were necessary to allow this undersized structure to operate as a permitted two-family dwelling. Lydon further emphasized the residence's proximity to the downtown area, characterizing the neighborhood as "transition[al]" with multiple uses without a defined single-use character. He noted the "sister" property next door was a two-family dwelling. Addressing the negative criteria, Lydon asserted the structure had been used as a two-family dwelling for decades without any negative impact to the neighborhood or a substantial detriment to the surrounding properties. Further, the proposed use complimented the existing mixed uses in the neighborhood in a split zone block of other residential and commercial uses. Discussion was held regarding whether the loose gravel driveway was considered impervious.
During the public portion of the meeting, plaintiff inquired about the age of the dwelling's fixtures and representations Panagi received upon purchase. He also introduced tax lists from the Borough from 2008 through 2010 to show what he asserted were illegal two-family dwellings. He suggested had Panagi been diligent, he would have learned the two-family use was illegal.
At the conclusion of the hearings, the Board voted unanimously to approve Panagi's application, granting a use variance, pursuant to N.J.S.A. 40:55D-70(d)(1), conditioned on installing a second floor window. The Board also found 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 at the same time, protected the integrity of neighboring properties in the zone. Thereafter, the Board memorialized its determination in a detailed resolution that was approved on July 20, 2011. In the resolution, the Board concluded the site was particularly well suited for the use, as evidenced by the property's more than twenty-year use as a two-family residence, and all of the bulk nonconformities were preexisting. The lot was undersized, and based on the placement of the home on the lot, the side-lot deficiency was preexisting.
Plaintiff filed an action in lieu of prerogative writs challenging the Board's decision as arbitrary and capricious, as granting the variance constitutes de facto zoning. He maintained the Board failed to provide a basis to modify the zoning restrictions for the application, noting the zoning ordinance strictly limits two-dwelling use in the zone. Plaintiff also rejected the sufficiency of the evidence to find the proposed use was inherently beneficial. Finally, plaintiff asserted the Board ignored the Borough's master plan and its action changed the character of the neighborhood and community.
Following a hearing, the Honorable Joseph S. Conte issued a comprehensive, eleven-page opinion. Based on his review of the evidence, he determined the Board's action was neither arbitrary nor capricious. He reviewed the specific evidence presented to and relied upon by the Board to establish the positive and negative criteria, which he found sufficient and uncontroverted. He concluded Panagi proved both the positive and negative criteria applicable to the variance request. Specifically, he mentioned the site was particularly well suited for the proposed use, as it had been used for two-family occupancy for more than twenty years. During that time and based on the present application, no changes to the structure or use were proposed making the bulk nonconformities a preexisting hardship. Moreover, the use although unsanctioned, was long-standing and had not caused any detriment to the surrounding area. He also found the record supported the Board's determination that the application established a request for a variance which could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance. Examining plaintiff's challenges, Judge Conte found them wanting, as devoid of evidence to establish the Board's grant of the requested variances was arbitrary, capricious or unreasonable. He dismissed plaintiff's complaint.
Zoning boards make quasi-judicial decisions to grant or deny applications within their jurisdiction.
Willoughby v. Planning Bd. of Deptford , 306 N.J.Super. 266, 273 (App. Div. 1997);
Kotlarich v. Mayor of Ramsey , 51 N.J.Super. 520, 540-42 (App. Div. 1958). The determination of a zoning board is presumed to be valid.
Kramer v. Bd. of Adj., Sea Girt , 45 N.J. 268, 285 (1965); Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp. , 172 N.J. 75, 81 (2002). The court's review of a board's decision is based solely on the record before the board.
Kramer , supra, 45 N.J. at 289. A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See
Cell S. of N.J. , supra, 172 N.J. at 81. The burden is on the challenging party to demonstrate that the board's decision was arbitrary, capricious or unreasonable.
New Brunswick Cellular v. Bd. of Adj. of S. Plainfield , 160 N.J. 1, 14 (1999);
Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj. , 152 N.J. 309, 327 (1988);
Cell S. of N.J. , supra, 172 N.J. at 81.
We apply the same standards as the trial court.
Bressman v. Gash , 131 N.J. 517, 529 (1993); D. Lobi Enters. v. Planning/ Zoning Bd. of Sea Bright , 408 N.J.Super. 345, 360 (App. Div. 2009). However, when an appeal raises a question of law, we apply a plenary standard of review.
Wyzykowski v. Rizas , 132 N.J. 509, 518 (1993).
On appeal, plaintiff generally argues the same issues presented to the trial judge, including: Panagi's proofs were deficient to support the finding that the proposed use promoted the general welfare and was particularly well-suited for the site. Rather, he suggests the proposed use as permitted by the Board substantially impairs the zoning plan and ignores the requirements of the zoning ordinance.
After considering plaintiff's arguments, in light of the record and the applicable law, we affirm substantially based on Judge Conte's well-reasoned opinion. R. 2:11-3(e)(1)(A). We are satisfied, in light of the lengthy history of the use of the property, as well as its compatibility with surrounding properties, that the Board's determination to grant the necessary variance to allow use of this structure as a two-family dwelling was appropriate.