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D’Amato v. City of Clifton

A-2778-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES; HARDSHIP — Even though a land use board may have granted approvals, if it was unaware that a portion of the applicant’s construction plans would require a further variance, the applicant, once having commenced construction without the needed variance, cannot rely upon the undue hardship resulting from the original approval as the basis for obtaining the missing variance.

A married couple obtained zoning board approval for bulk variances after the husband testified before the board that he intended to enclose his front porch and “go straight up” to construct further additions to the home. These approvals were contingent upon the applicants executing a deed restriction limiting the use of their house to a single-family dwelling. The board was unaware of the applicants’ plans to build a cantilevered second story unit until construction was well underway. Moreover, the board issued its approval based on a thirteen-foot setback, not a ten-foot setback. After work commenced, the municipality’s building department issued a stop-work order because a second-floor cantilever encroached on the approved front yard setback. The applicants appealed.

The Law Division remanded the matter for the board to determine whether the applicants’ original bulk variance authorized construction of the cantilevered second floor with the setback of eleven feet, four inches, and, if not, whether the extension could remain.

On remand, the board held that the applicants failed to demonstrate: (a) they had received prior approval of the cantilever; or (b) that the second floor structure had only a ten-foot approved front yard setback. The board also ruled that the original setback application did not indicate a setback of less than thirteen feet was to be maintained, and that the husband had initially represented that he was “just enclosing” the existing porch. The applicants also failed to show any basis to justify a variance for a ten-foot setback. The applicants again sued the board challenging its ruling.

The Chancery Division held that the zoning board exceeded the scope of the remand. It held that the practical effect of the board’s insistence that the applicant comply with such a setback would be to require the home’s foundation to be moved. Thus, it reversed the board to the extent the board had rescinded the applicants’ right to the relief obtained in the variance. It affirmed, however, the board’s denial of a bulk variance for the cantilever because the board’s resolution had not authorized its construction and since the board was not even aware of the applicants’ intent to construct the cantilevered structure. It also vacated the stay of the stop-work order. The applicant appealed.

On further appeal, the Appellate Division affirmed, noting that the applicants, having already constructed the cantilevered structure, had been seeking a variance on the basis that removal of the structure would be an undue hardship. It noted that the applicants offered no evidence of hardship that would justify a variance for a reduced setback. The Court held that the applicants did not establish that the benefits of deviation for the zoning ordinance requirements outweighed any detriment, as required under the applicable statute. In addition, many objectors testified that granting the variance would be a detriment to the neighborhood. Therefore, the applicants failed to show that the board’s decision was arbitrary, capricious or unreasonable. It also rejected the applicants’ contention that they didn’t have to satisfy the statutory requirement for undue hardship because the board had granted their original approval. The Court held that this rejection was because the board was unaware of their plan to build the cantilevered second story until construction was well underway. It found that the board had issued its approval within the context of a thirteen-foot setback, not a ten-foot setback. Moreover, the Court held there was testimony that the renovation created a substantial detriment to the area and changed the character of the neighborhood. The Court found that the lower court’s acceptance of this testimony was reasonable.


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