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Chartouni v. Borough of Essex Fells Planning Board

A-5735-99T1 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; VARIANCES—When negative impact is virtually non-existent, it requires very little in the way of public benefit to meet the requirements for a “c-2” variance.

A house with a detached garage was properly built and a certificate of occupancy was issued. After someone fell on ice that had accumulated on the path between the house and the garage, the owner constructed a six-foot wide, twelve-foot long, connector between the house and the detached garage. This led to a problem with the side yard setback for the garage. As a separate structure, the garage’s fifteen-foot wide side yard exceeded the required ten-foot distance for an accessory structure. Once the garage became part of the principal structure, the side yard setback requirement became thirty-two feet. The planning board denied the variance and ordered that the connector be removed. There was sufficient testimony that the construction had no negative impact on neighboring property owners and was aesthetically pleasing. It was not visible or was barely visible from the street. Also, there was testimony that the connector would have no negative impact on the value of any property in the area. The planner engaged by the property owner testified that the side yard setback met the statutory requirements for a variance and that the local zoning ordinance would be served, “namely, adequate light, air, and open space would be provided.” Further, the connector provided safe access and promoted health and safety. Most of the other residents on the street had attached garages. One neighbor opposed the application. That neighbor lived across the street and could not see the connector from her house. Her statement was that she “disapproved of a large house being built on the lot in the first place.” A board member characterized the owner’s approach as “almost a deliberate attempt to get your own way in a very sly manner” and that it would be “a very bad precedent… .” The municipality’s mayor was concerned that the applicant had failed to follow municipal regulations and that “once burned twice shy” was an old adage, “one that sometimes had much truth.” The lower court judge visited the site and found nothing displeasing about the structure. The lower court listened to the planning board’s attorney stress the “importance of uniformity as a purpose of the land use ordinance,” but adopted what the Appellate Division called “the appropriate objective standard” for review. It then upheld the board’s denial of the variance.

The Appellate Division disagreed with the lower court’s assessment of the record. The lower court had found that if the variance were to be granted, it would merely advance the purposes of the owner and would not have benefitted the community and it did not represent “a better zoning alternative for the property.” The Appellate Division recognized that deference must normally be given to a municipal land use board’s decision but held that this board acted in an arbitrary and capricious manner. The variance in question was a “c-2” application. According to New Jersey Supreme Court, a “c-2” dimensional variance is generally of lesser moment than “c-1” hardship variance and such a variance “need not be so closely confined to the general welfare” to meet the overall purposes of the Municipal Land Use Law. Essentially, the Supreme Court previously said, “if only the purposes of the owner are advanced, and not some benefit to the community, the c-2 variance ordinarily should not be granted.” Here, however, the Appellate Division saw no evidence that the board or the lower court gave any weight to the benefit to the community from a related minor sub-division application by the same property owner. That related application reduced the development potential of an adjacent lot. Further, it appeared that neither the board nor the lower court considered the safety concern advanced by the construction and the Court pointed out that “[p]romoting the health and safety of the residents and their visitors is within the general purpose of the MLUL and the zoning ordinance.” Further, there was no evidence of negative impact and “when negative impact is virtually non-existent it requires little in the way of public benefit to meet the required standard ... that the benefits substantially outweigh any detriment.” Lastly, the proposed connector itself did not violate any side yard setbacks, nor did the garage or the house as separate structures violate the setbacks as applied to them as built. After building the connector, “only the garage portion, which caused no problem to anyone before the connector was built [was] now out of compliance with the zoning code.” The planning board’s witnesses were unable to satisfy the Court as to the rationale of larger setback requirement in this particular case.

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