Opinion
DOCKET NO. A-3230-11T1
04-16-2013
JEFFREY R. JERMAN, Plaintiff-Respondent, v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BERKELEY, Defendant-Appellant, and THE TOWNSHIP OF BERKELEY, Defendant.
Tier & Di Stefano, L.L.C., attorneys for appellant (Brian Di Stefano, on the briefs). Jeffrey R. Jerman, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2454-11.
Tier & Di Stefano, L.L.C., attorneys for appellant (Brian Di Stefano, on the briefs).
Jeffrey R. Jerman, respondent pro se. PER CURIAM
Defendant Zoning Board of Adjustment of the Township of Berkeley (Board), appeals from the January 27, 2012 order reversing its denial of plaintiff Jeffrey R. Jerman's application for two bulk variances needed to build a home on an undersized isolated lot. The Board alleges on appeal that the prerogative writs judge improperly considered the Board's hostility toward plaintiff and failed to give due deference to the judgment of the Board. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On November 15, 2010, plaintiff purchased an undersized lot on Block 725 in Berkeley Township (the Property). The Property is an R-125 lot, zoned for residential buildings, that requires an area of 12,500 square feet, whereas the Property has 7500 square feet, and frontage of 100 feet, whereas the Property has fifty feet of frontage. In order to build a single-family dwelling, plaintiff applied to the Board for two bulk variances pursuant to N.J.S.A. 40:55D-70(c). The Board held two hearings before denying plaintiff's application.
Jeffrey Daum, a professional engineer and planner, testified on behalf of plaintiff. Daum indicated that the proposed application met all setback and bulk variances other than the two variances plaintiff sought, one for general area and one for frontage. The Property's site plan indicated that it would be connected to a public sewer and have a well. Daum testified that a 7500 square foot piece of property could support a typical three-bedroom home. Daum also indicated that without the two variances requested or additional property, plaintiff could not develop the lot.
The proposed house would have a garage, which Daum indicated is important in residential zones as it provides indoor storage. Most of the homes in the area had garages. Additionally, the square footage fell in the mid-range of homes located in Pinewald, 1700 square feet (2000 square feet including the garage), with surrounding homes ranging from 1000 to 3000 square feet.
Daum further testified that the neighborhood contained both single-story older homes and two-story newer homes. Daum testified that the proposed home would fit in with the general character of the neighborhood and did not pose any detriment to the public good or violate the intent of the zoning plan. As for the impact of the variances, Daum believed it would be no greater than if the home were built on a conforming lot. Daum explained, "We've maintained the setbacks. We've created light[,] air, [and] open space around the house. We've provided for adequate grading. We've provided for tree preservation on the lot. It's a house that's traditionally styled and fits in with the neighborhood."
Daum reviewed the engineer's letter with the Board. Regarding the connection to the public sewer, Daum indicated that the Utility Authority handles the connection, but he would include construction details in the grading plan. The plan also proposed roof drain pits and sought waiver of the Drainage Trust Fund contribution because of the comprehensive storm drainage system that would be installed. Daum testified that the building was well within the ordinance height requirements. As for the tree ordinance, plaintiff and Daum interpreted its terms as requiring maintenance of fifty percent of the trees in the combined back and side yards. The Board interpreted the tree ordinance to require maintenance of fifty percent of the trees in the side yard, and fifty percent of the trees in the back yard. Finally, in order to meet the two percent slope requirement from the house to the street, plaintiff would have to raise the house six or eight inches by using fill from the front yard and put in retaining walls.
Plaintiff also presented the testimony of Dawn Marie White, a real estate broker. White indicated that she was not a certified appraiser, but she had been a real estate broker for seven years. White's testimony pertained to the style of the home, general makeup of the neighborhood, various approved variances and why a two-story house fits in better with the neighborhood.
Plaintiff obtained letters from two of the three adjoining property owners indicating that they did not want to buy his property or sell adjoining property to him. The third adjoining property owner did not respond to plaintiff's letter seeking to buy or sell his property. Plaintiff also proffered a letter from a title company indicating that the lot had never been a part of another parcel of land and thus qualified as an isolated lot.
In response to plaintiff's plans, neighbors expressed concerns over property devaluation, residents of the proposed construction, the impact on the school system, where to draw the line with granting variances for undersized lots, drainage issues to neighboring homes and the strain on community resources.
The Board determined that plaintiff and his two experts were not credible. The Board evidenced their displeasure that plaintiff purchased the land knowing that it was undersized, and earns a living applying for variances on isolated lots and then either building on the property if the variances are granted, or selling the property to the town at an enhanced price if the variances are not granted. The Board also determined that the notice plaintiff gave to his adjoining neighbors to buy his land, or sell to him part of their land, was insufficient, although plaintiff gave an additional thirty days to respond and in fact heard from two of the three neighbors. The Board considered plaintiff's hardship self-induced and determined that the two-story home plaintiff proposed did not fit in the neighborhood of one-story ranches. The Board was concerned generally about the effect of plaintiff's proposed dwelling on the surrounding property values, the school system, the sewer system, township resources, Barnegat Bay, and compliance with the tree ordinance and the home's aesthetic appeal.
Plaintiff agreed to adjust his plans to meet the Board's concerns: he agreed to abide by the tree ordinance as interpreted by the Board, he assured the Board that he met all other setback and area requirements, and he even proposed to build a one-story home without a garage if the Board and the neighbors preferred. Despite his efforts, the Board categorically rejected plaintiff's application.
The Board also refused to accept the letter from plaintiff's title company indicating that the lot was isolated and had been so since before the zoning ordinance was passed, claiming the letter was inadmissible hearsay.
N.J.S.A. 40:55D-10(e) states that "Technical rules of evidence shall not be applicable to the [zoning board] hearing, but the agency may exclude irrelevant, immaterial or unduly repetitious evidence."
Where an applicant's proposal for a variance is denied, the applicant bears "the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988) (citation omitted). The trial judge may not "substitute his own judgment for that of the municipal board invested with the power . . . to pass upon the application." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976) (citations omitted). In reviewing a planning board's decision, we use the same standard used by the trial court. Cohen v. Bd. of Adjustment of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)); Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6 (App. Div. 1996) (citations omitted). Like the trial court, our review of a planning board's decision is limited. Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference to a planning board's decision and reverse only if its action was arbitrary, capricious, or unreasonable. Cohen, supra, 396 N.J. Super at 620; Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987) (citations omitted); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965).
Pursuant to N.J.S.A. 40:55D-70(c), a board of adjustment has the power
(1) 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 article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, 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[.]"To receive a variance under N.J.S.A. 40:55D-70(c)(1), an applicant must satisfy two criteria[,]" commonly referred to as positive and negative criteria. Dallmeyer v. Lacey Twp. Bd. of Adjustment, 219 N.J. Super. 134, 139 (Law Div. 1987). "First it must be shown that exceptional or undue hardship will result if the variance is not granted, the positive criteria. Additionally, it must be shown that the variance will not result in a substantial detriment to the public good or the zoning plan, the negative criteria." Ibid.
Article 8 refers in part to N.J.S.A. 40:55D-62, which addresses the governing body's power to zone and states in relevant part that "[t]he governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon."
In determining whether an undue hardship exists, courts consider the efforts of the property owner to bring the lot into compliance with the zoning ordinance and whether the hardship is self-created. The undue hardship analysis considers whether it is feasible to purchase property from adjoining property owners to bring the lot into conformance with the ordinance. Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980). Likewise, it is relevant whether the property owner offered to sell the land to the adjoining neighbors for a fair and reasonable price. Ibid. As for whether the hardship is self-created, it is well-established that if neither the person who owned the lot when the zoning ordinance making it undersized was adopted nor a subsequent owner did anything to create the condition for which the variance is sought the hardship is not self-created. Ibid. A right to relief passes from the original owner to the successor. Wilson v. Borough of Mountainside, 42 N.J. 426, 453 (1964). That right is not lost simply because the succeeding owner bought or contracted to buy with knowledge of the lot restriction. Harrington Glen, Inc. v. Mun. Bd. of Adjustment of Leonia, 52 N.J. 22, 28 (1968) (citation omitted).
As for the negative criteria, where the denial of a variance amounts to a confiscation of the premises, the Board must consider the application with the utmost fairness. Id. at 29. In Chirichello v. Zoning Bd. of Adjustment of Monmouth Beach, 78 N.J. 544, 557 (1979), the court noted that any variance that impacts the minimum zoning requirements impairs the zoning plan. The court considered factors such as whether the house is similar in design and size to other homes in the area; compliance with side, rear and front yard setbacks; total square footage as compared to other lots; and compliance with the ordinance's use requirements. Ibid. Likewise, the Commons court considered light, air, and space concerns, as well as, size of the home and ultimate sale price as compared to the surrounding homes. Commons, supra, 81 N.J. at 609.
"The Fifth Amendment to the United States Constitution and Article I, Paragraph 20 of the New Jersey Constitution prohibit the taking of property for public use without just compensation." Dallmeyer, supra, 219 N.J. Super. at 142. A "taking" does not require a formal condemnation proceeding, but rather "'while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.'" Ibid. (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160, 67 L. Ed. 322, 326 (1922)). The application of general zoning laws results in "'a taking if the ordinance . . . denies [the] owner economically viable use of his land.'" Ibid. (first alteration in original) (quoting Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106, 112 (1980)). In fact, "'a compensable taking can occur when governmental action substantially destroys the beneficial use of private property. Restrictions on land use short of total appropriation, if sufficiently extensive and prolonged, may constitute a taking.'" Ibid. (quoting Schiavone Constr. Co. v. Hackensack Meadowlands Dev. Comm'n, 98 N.J. 258, 263 (1985)).
In cases such as this one,
[t]he Board must have in mind that if it finds plaintiffs are not entitled to relief, the ordinance will have zoned their property into idleness. Denial of permission to build a home upon the lot deprives it of all productive or beneficial use. The only distinction between such zoning restriction and an actual taking by the municipality is that the restriction leaves the owner with the burden of paying taxes on the property, while the outright taking relieves him of that burden. Ordinarily restraint upon all practical use, such as that which would follow from denial of a variance, is spoken of in terms of confiscation.The purchase price of the property is its fair market value, as if the land were conforming property, in other words, as if the Board granted all necessary variances. Nash v. Bd. of Adjustment of Morris, 96 N.J. 97, 107 (1984).
[Harrington Glen, Inc., supra, 52 N.J. at 29 (citations omitted).]
In response to the Board's questions, plaintiff said that he had purchased the lot for $22,000 and could sell it for $69,000 to $79,000 after obtaining the requested variances.
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Here, the Board's hostility towards plaintiff, because it perceived that plaintiff was taking advantage of the municipal land use law without concern for the welfare of Berkeley, interfered with a fair analysis of the positive and negative criteria, and was an arbitrary rejection of proof that the undersized lot was an isolated lot. The only way for the Board to protect Berkeley's interest in maintaining the lot vacant without having to purchase the lot at an enhanced cost was to reject plaintiff's application for the variances and also reject the evidence that the lot was an isolated lot. Such actions were arbitrary and capricious as determined by the trial judge.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION