November 14, 2013
ALFONSO DIASPARRA and SANDRA DIASPARRA, his wife, Plaintiffs-Respondents,
PLANNING BOARD OF THE BOROUGH OF TENAFLY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1452-12.
Jeffrey A. Zenn argued the cause for appellant (Sokol, Behot & Fiorenzo, attorneys; Mr. Zenn, on the briefs).
Elliot W. Urdang argued the cause for respondents.
Before Judges Ostrer and Hayden.
The Borough of Tenafly Planning Board (Board) appeals from the trial court's order reversing its decision denying approval of the application of plaintiffs Alfonso and Sandra Diasparra for a two-lot subdivision and related variance under N.J.S.A. 40:55D-70c(2) from the zoning ordinance's minimum lot width requirement.
The Board argues the trial court erred by failing to defer to its finding that plaintiffs did not satisfy the criteria for the variance. In particular, the Board argues the court erred in concluding that there was a pre-existing and non-abandoned, non-conforming use of the existing home as a two-family structure. The court found that removal of the non-conformity satisfied the positive criteria required for approval of the variance, that is, it furthered the purposes of the zoning law. See Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 563 (1988).
Having considered the Board's arguments in light of the record and applicable legal principles, we reverse.
We discern the following from the record. Plaintiffs own real property known as 143 Magnolia Avenue in Tenafly. Situated on the left or southerly half of the property is a small two-story, single-family, four-bedroom house, with roughly 1600 square feet of living space, excluding the basement. To the right of the house, roughly in the center of the property, is a one-and-a-half story detached garage, 600 square feet, with a one-bedroom apartment above the garage-level. Both structures were over eighty-seven years old. Plaintiffs' lot is oversized and significantly larger than those nearby. It is 19, 419 square feet in a residential zone with a 9000 square foot minimum. It significantly over-complied with various zoning standards related to the intensity of use of the property.
Plaintiffs proposed to subdivide the property into two lots of roughly equal size; renovate the existing house; raze the existing garage with the apartment; build a second single-family home on the new northerly lot; and build a new detached garage without an apartment, to the left of the existing house, along the southerly property line. In so doing, plaintiffs argued they would remove a non-conforming use. They alleged the house previously had been used as a two-family home. Although it was currently rented as a single-family dwelling under a two-year lease, they asserted the non-conforming use was not abandoned. The elimination of the residence above the garage would also eliminate a non-conforming use.
Plaintiffs' plan would deviate only from minimum lot width requirements, for which plaintiffs required a variance. The minimum width required at the setback was seventy-five feet. The plan provided for widths of sixty-six feet, and sixty-one feet at the setback for the northerly and southerly lots, respectively. (The proposed widths at the street were roughly the same, amply complying with the fifty-foot requirement.) In all other respects, the proposed residences complied, and, particularly in the case of the existing house, significantly over-complied with the ordinance. For example, the proposed northerly lot would have a sixty-five-foot-deep rear yard, and the southerly lot with the existing house would have an eighty-foot-deep rear yard, compared with a thirty-foot requirement. Compared to the maximum allowed Floor Area Ratio (F.A.R.) of 37.5 percent, the southerly house would have a 24.57 percent F.A.R., and the newly constructed house would have 35.42 percent F.A.R.
Plaintiffs argued the proposed configuration would not conflict with the existing neighborhood. Eleven of the sixteen homes on the same block of Magnolia Avenue, between Prospect Terrace and Hudson Avenue, had lot widths of fifty-one feet both at the street and setback. Plaintiffs argued that their proposal was also more beneficial, and consistent with the neighborhood, than an alternative available to plaintiffs as of right: to raze all the structures and construct a large so-called "McMansion, " that would dwarf nearby homes.
The Board, in a four-to-four vote, denied plaintiffs' application. The Board found that plaintiffs had failed to prove that the non-conforming use was legal — that is, the use preceded the adoption of the ordinance that barred it. The Board also found that plaintiffs had failed to show the non-conforming use was not abandoned when the house was converted to a single-family dwelling and leased as such for two years.
The Board heard evidence from Mr. Diasparra regarding the historical use of the property. He testified that he became familiar with the property when he was twelve years old in 1952. He testified that a friend's family lived in the apartment above the garage. He maintained there were "two different families living in this house for 75 years. And there was a family living in the apartment over the garage for at least 75 years."
However, the basis for his knowledge was unclear. He testified that he "came over" in 1952, and he provided no basis of knowledge of the use before then. Moreover, although he apparently grew up in the area, he provided no basis for knowledge during subsequent years.
He stated that two men, Arthur Teagno and his brother, whose name Mr. Diasparra could not recall, lived in the house, one upstairs and one downstairs. The unnamed brother eventually moved out, and Arthur Teagno rented the second floor. But, at some point, Mrs. Teagno remained in the house. Mr. Diasparra did not explain her relationship to the brothers. "[T]he lady, Mrs. Teagno actually, when she died, I don't think her son had a tenant . . . ." Defendant purchased the house from the executor of Mrs. Teagno's estate in 2010.
He admitted lack of knowledge as to prior use of the property, stating, "[Y]ou got to remember I wasn't there." When asked when the house was last used as a two-family home, he stated, "Well, Mrs. Teagno lived downstairs for a long time. I mean how can I answer that question? . . . I mean it looked like somebody was living there, but I don't know when."
Plaintiffs presented a property record card on file with the Borough tax office reflecting that there were three dwellings on the property. Mr. Diasparra testified that he was informed the house was a two-family home when he purchased the property. The Board's engineer testified that "the zoning would be permitted, " if plaintiffs sought to restore the house to two-family use. The engineer also testified that the house was "listed in the records as a . . . two-family house with a unit over the garage."
Regarding the issue of abandonment, Mr. Diasparra testified, "if the subdivision was not granted, I would keep it two-family and the apartment over the garage." He made those assertions notwithstanding that, shortly after he purchased the property, he converted the house to a single-family dwelling and leased it as such for two years. He affirmed that "it would be [his] intention, if the subdivision were not granted, to revert back to the . . . two units in that . . . structure." He admitted that he removed the kitchen fixtures and appliances on the second floor to accommodate another bedroom, and removed the lock on the door to the second floor. However, he insisted that he did so in response to a prospective tenant's request. The kitchen-to-bedroom conversion was roughly a year old. Mr. Diasparra stated he retained the cabinets and appliances; the utility lines were capped but not removed; and separate metering remained.
On the other hand, Mr. Diasparra admitted that there would be no economic advantage to converting the property back to a two-family use. He also testified that he hoped his existing tenant remained.
There was no evidence that the use of the apartment above the garage was abandoned. Mr. Diasparra testified the apartment remained occupied.
It was apparently undisputed that the use of the house as a two-family dwelling was non-conforming. The R-9 zone permitted only single-family dwellings. Tenafly, N.J., Mun. Code § 35-801.4(a) (2013), http://clerkshq.com/default.ashx?clientsite= Tenafly-nj. The use of the garage apartment was also non-conforming, as the Tenafly Zoning Regulations barred use of accessory buildings, such as garages, for residential purposes. Id. at § 35-802.9(d).
However, the Board found plaintiffs' proof insufficient to show that the non-conforming use of the property was legal — that is, that the use preceded the adoption of the ordinance barring it. The Board relied on the fact that neither plaintiffs nor a prior owner obtained a determination from the zoning officer or board of adjustment that the use was legal. See N.J.S.A. 40:55D-68.
The Board also was unconvinced by plaintiffs' proofs that they did not intend to abandon the multi-family use — as it pertained to the house — when they leased it to a single family after converting the second-floor kitchen into a bedroom. Consequently, the Board found the proposal did not offer the benefit of removing a prior legal non-conforming use to which the owner was otherwise entitled.
The Board also found that even assuming the removal of a legal non-conforming use, the net benefits of the proposed development did not outweigh its detriments. The Board found that the subdivision would have a substantial detrimental effect on the surrounding streetscape and neighborhood by increasing density, and removing green space and open space.
Plaintiffs filed a complaint in lieu of prerogative writs, seeking an order compelling the Board to grant plaintiffs' application. After a hearing, the court granted plaintiffs that relief. The court held that the Board ignored persuasive evidence that the proposal would eliminate the "pre-exi[s]ting non-conforming three-family use in a single-family zone." The court reasoned, "The result will bring the property into consistency with both the zoning ordinance and the developed character of the neighborhood. Certainly that constitutes a benefit to the community." With regard to abandonment, the court concluded that the Board acted arbitrarily and capriciously in rejecting Mr. Diasparra's testimony, and "ignoring the considerable evidence presented to the Board, " including the property tax record and the Board engineer's testimony. The court also rejected the Board's conclusion that the development would detrimentally impact the neighborhood, noting that the two proposed houses on the slightly narrow lots would be consistent with other lots on the block.
The Board's appeal followed. The Board principally argues that the court erred by not deferring to the Board's findings, which were amply supported by credible evidence in the record. In particular, the Board argues the court should have deferred to its findings that plaintiffs failed to satisfy the positive criteria, because they had failed to prove the existence of a prior legal, non-abandoned, non-conforming use. We agree.
We apply the same standard of review as the trial court when reviewing a municipal action. Kinderkamack Road Assocs. v. Mayor and Council of Oradell, 421 N.J.Super. 8, 21 (App. Div. 2011); Charlie Brown of Chatham, Inc. v. Bd. of Adjustment of Chatham, 202 N.J.Super. 312, 321 (App. Div. 1985). The Legislature has vested decision-making authority in the municipal body, which is granted broad discretion, in part, because of its knowledge of local conditions. See Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990); Charlie Brown, supra, 202 N.J.Super. at 321. Our task is to determine whether the Board's decision was arbitrary, unreasonable, or capricious. Cell S. of N.J. v. Zoning Bd. of Adjustment of West Windsor, 172 N.J. 75, 81-82 (2002); Med. Ctr. at Princeton v. Princeton Zoning Bd., 343 N.J.Super. 177, 198-99 (App. Div. 2001). In other words, we ascertain whether there is substantial evidence to support the local agency's determination; we also consider whether the board has usurped authority reserved to other decision-makers. Ten Stary Dom P'ship v. Mauro, __ N.J. __, __ (2013) (slip op. at 22); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965). We may not substitute our judgment for that of the local body. Ten Stary, supra, N.J. At __ (slip op. at 22).
Because variances should be sparingly granted, courts must extend greater deference to a variance denial than to a grant. Rowatti v. Gonchar, 101 N.J. 46, 52 (1985); Nynex Mobile Commc'ns Co. v. Hazlet Zoning Bd. of Adjustment, 276 N.J.Super. 598, 609 (App. Div. 1994). Particularly with respect to c(2) variances, the Legislature has vested a "larger measure of discretion in local boards" and trial courts are "obliged to respect that grant of power." Kaufmann, supra, 110 N.J. at 566. Where a board has denied a variance, the "plaintiff has the heavy burden of establishing that the evidence is so overwhelming in support of the variance that the board's action can be said to be arbitrary and capricious." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J.Super. 1, 4 (App. Div. 1976). The applicant challenging a variance denial "must demonstrate that the affirmative evidence in the record dictates the conclusion that the denial was arbitrary." Id. at 5.
We also accord deference to other findings of the Board, such as its findings about the existence of a non-conforming use. Reich v. Fort Lee Zoning Bd. of Adjustment, 414 N.J.Super. 483, 503-04 (App. Div. 2010) (applying arbitrary and capricious standard to board determination that property owner expanded prior non-conforming use); Eltrym Euneva, LLC v. Keansburg Planning Bd. of Adjustment, 407 N.J.Super. 432, 436-37 (Law Div. 2008) (applying arbitrary and capricious standard to board determination that property owner failed to prove prior non-conforming use). A board's "factual conclusions are entitled to great weight and, like those of an administrative body, ought not be disturbed unless there is insufficient evidence to support them." Rowatti, supra, 101 N.J. at 52 (deferring to board conclusion that homeowner's addition converted dwelling from single-family to multi-family dwelling).
Plaintiffs sought to subdivide their property into two lots that would be nine feet, and fourteen feet narrower than the seventy-five foot minimum width at the setback line. Consequently, they requested a variance pursuant to N.J.S.A. 40:55D-70c(2). To succeed, plaintiffs were required to show that " the purposes of the [Municipal Land Use Law (MLUL)] . . . would be advanced by [the] deviation from the zoning ordinance requirements and  the benefits of the deviation would substantially outweigh any detriment." Ibid. These two factors are known as the positive criteria. See Chicalese v. Monroe Planning Bd., 334 N.J.Super. 413, 427-28 (App. Div. 2000). In addition, plaintiffs were required to satisfy negative criteria, that is, the variance would not result in "substantial detriment to the public good" and "[would] not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. See Price v. Himeji, LLC, 214 N.J. 263, 288 (2013) (describing negative criteria).
The positive criteria "include proof that the characteristics of the property present an opportunity to put the property more in conformity with development plans and advance the purpose of zoning." Ten Stary, supra, __ N.J. At __ (slip op. at 17-18) (citing Kaufmann, supra, 110 N.J. at 563-64). The focus is not on the benefits to the property owner. "By definition . . . no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Kaufmann, supra, 110 N.J. at 563.
Plaintiffs maintained that they met the positive criteria because they proposed to remove legal non-conforming uses of the property. By bringing the property into conformity with the zoning plan, it promoted the plan's goals. We do not challenge the notion that removal of prior legal non-conforming uses may satisfy the positive criteria. Cf. Grundlehner v. Dangler, 29 N.J. 256, 270 (1959) (stating that "minimization . . . of [a] discordant use" may satisfy required "special reasons" for variance under former N.J.S.A. 40:55-39(d)). However, the Board was unconvinced by plaintiffs' showing that the prior non-conforming use of the house as a two-family dwelling, and the current non-conforming use of the garage, were valid uses. The Board also was unconvinced that the non-conforming use of the house was not abandoned. If the non-conforming uses were not legal, or had been abandoned, then the proposed development would not be needed to achieve the benefits from cessation of the use; the zoning officer could accomplish the same end by enforcing the existing ordinance.
We evaluate the Board's determination in light of established principles governing non-conforming uses. The proponent of a legal non-conforming use bears the burden of persuasion. Ferraro v. Zoning Bd. of Keansburg, 321 N.J.Super. 288, 291 (App. Div. 1999); N.J.S.A. 40:55D-68 ("The applicant shall have the burden of proof."). The proponent of the non-conforming use also bears the ultimate burden to show it was not abandoned, although an objector has a burden of coming forward with some evidence of abandonment. Berkeley Square Ass'n v. Zoning Bd. of Adjustment of Trenton, 410 N.J.Super. 255, 269 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010).
A property tax record, like a certificate of occupancy, may be persuasive evidence of the manner in which a property was used. However, neither a property tax record, nor a certificate of occupancy, determines the legality of use. See Twp. of Mahwah v. Landscaping Techs., Inc., 230 N.J.Super. 106, 109 (App. Div. 1989) (stating that a certificate of occupancy is not proof of legal non-conforming use). To establish the prior valid non-conforming use, a proponent must show "a then-lawful use existed in the structure in question at the time of adoption of the zoning ordinance . . . [and] continuity of such use thereafter." Ferraro, supra, 321 N.J.Super. at 291; see also N.J.S.A. 40:55D-68 ("Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.").
A property owner may permanently lose its right to a non-conforming use through abandonment. Abandonment occurs when there is "(1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment." S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment of Stratford, 373 N.J.Super. 603, 613-14 (App. Div. 2004). The "[m]ere passage of time during a cessation of active use" does not necessarily result in abandonment. Id. at 617. However time is a factor. Id. at 617-18. The court must consider the ease with which a discontinued use may be revived. "[S]ome discontinued uses are more readily revivable than others." Id. at 618. The court must consider:
all circumstances, including those that caused the cessation, the nature and quality of efforts being made to resume the use, and any other objective manifestations supporting or negating the owner's expressed intention to continue the use. And it must be remembered that the intention must be a continuing and definite one.
Moreover, a property owner's statement of subjective intention to continue the non-conforming use is only "the beginning, not the end, of the inquiry." Id. at 614.
The clear policy of this State is to eliminate nonconforming uses as quickly as is compatible with justice. An unsubstantiated assertion of intention cannot carry the day, for that would substantially impair, if not defeat, advancement of the elimination policy. Rather, the owner must demonstrate that the intention to continue the use is a continuing and definite intention, which must be substantiated by all of the circumstances surrounding the cessation.
[Ibid. (citations omitted).]
Applying these principles, mindful of the deference owed to the Board, especially in reviewing a variance denial, we cannot conclude on this record that the Board acted arbitrarily or capriciously in rejecting plaintiffs' claim that they possessed a right to a prior, valid, and non-abandoned, non-conforming use. There was certainly persuasive evidence that at one point in time, the house was used as a two-family dwelling, given the property record card, and the testimony of Mr. Diasparra and the Board engineer. However, plaintiffs presented no evidence regarding when Tenafly Borough imposed the regulations, now present in its ordinance, rendering non-conforming the maintenance of a two-family home in the R-9 zone, and the maintenance of a residence in a garage. Such evidence was essential to establish that the use preceded the adoption of the ordinance and was a protected property right.
Also, as we have noted, the non-conforming use must be continuous. Mr. Diasparra testified that the garage was used as a residence in 1952, when he was a twelve-year-old boy. He also has insisted that for seventy-five years, the house was continuously used as a two-family dwelling, and the garage used as a residence. However, the record lacks a foundation for his assertion, particularly since that time period preceded Mr. Diasparra's arrival in Tenafly.
Moreover, he admitted a lack of knowledge about the use of the house during significant periods of time, such as when Mrs. Teagno occupied the premises. Given the allocation of the burden of persuasion, the Board was justified in concluding that there was insufficient evidence of a prior legal and continuous non-conforming use.
We also find the evidence sufficient to support the Board's conclusion that plaintiffs abandoned any right they had to use the house as a two-family dwelling. The Board did not ignore Mr. Diasparra's claim of subjective intent. The Board did not believe it. See S & S Auto Sales, supra, 373 N.J.Super. at 624 ("Certainly, a board can find a failure by the owner to meet the burden, notwithstanding an expression of intention to not abandon, based upon a fair evaluation of all relevant circumstances."). Mr. Diasparra insisted that he would convert the house back to a two-family structure if the subdivision were rejected. However, he admitted that his existing tenants had another year on their two-year lease. He also stated, with respect to the tenant, "I hope he stays there for a while." Moreover, as we have noted, Mr. Diasparra could point to no advantage in converting the house back to a two-family structure.
The objective manifestations of Mr. Diasparra's intent could also be viewed as supporting abandonment. He converted the house to a single-family dwelling. He leased it for two years. Although he retained the appliances and fixtures, he admitted he was a builder and also a landlord; he could have used the items elsewhere. Moreover, he may have capped, instead of removed the utility lines to the second floor of the house, because it would have been a premature and unnecessary expense, given his intention, if his subdivision were approved, to renovate the house. While we recognize that a property owner is not obliged to seek a certification of a prior legal non-conforming use pursuant to N.J.S.A. 40:55D-68, plaintiffs' failure to do so is additional evidence that they did not value the non-conforming use, nor intend to continue it.
In sum, we conclude the Board did not act arbitrarily and capriciously in concluding that plaintiffs would not bestow a benefit by removing a prior legal and non-abandoned, non-conforming use. Plaintiffs did not allege any other basis for satisfying the positive criteria. Consequently, there was sufficient evidence in the record for the Board's decision to deny the variance.
Given our conclusions regarding plaintiffs' failure to satisfy the positive criteria, we need not address the Board's argument that plaintiffs failed to meet the negative criteria, and its other points on appeal.