Skip to main content



DeLevi v. The Zoning Board of Adjustment of the Township of Marlboro

A-2744-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; HARDSHIP — Where a hardship is created by a predecessor in title who fails to include the subject property in subdivision applications, it will be treated as a self-created hardship for subsequent owners.

A property owner applied for a hardship variance to construct a 3,000 square foot residence on an irregularly shaped triangular lot. The owner’s predecessor in title had also applied for bulk variances to construct a house on the same property. In the prior owner’s case, the municipal zoning board denied the variance. That zoning board found that the claimed hardship was one created by an even earlier predecessor in title who failed to include the property in a subdivision application. It also found that the prior owner had failed to demonstrate that it used adequate efforts to bring the property into compliance with the zoning ordinance by either acquiring adjacent property or by offering the property for sale to adjacent property owners. In this case, the owner asked for substantially similar variances as had been requested by the prior owner.

The zoning board held hearings during which the owner’s experts testified that the proposed construction would be consistent with surrounding uses, and that the unique shape and exceptional shallowness of the property were a proper basis for granting the variances. Further, the owner claimed that the proposed residence would advance the purposes of the Municipal Land Use Law by “furthering population densities and desirable visual environment through creative development techniques.” The owner also argued that the house would enhance the surrounding neighborhood.
The zoning board denied the owner’s application, finding that the owner failed to demonstrate reasonable efforts to conform the property with the zoning ordinance by either buying adjacent property or selling the property to owners of adjacent property. It also found that the proposed residence was too large for the property and that the proposed residence would have an adverse impact on the surrounding properties. The zoning board also found that the owner’s application was substantially similar to the prior owner’s earlier unsuccessful variance application which was also denied.

The owner sued, but the lower court affirmed the zoning board’s findings. The lower court found that the owner failed to prove the need for a hardship variance because the “hardship” was one created by a predecessor in title who failed to include the property in its subdivision applications. The lower court also found that the owner did not demonstrate that it had taken reasonable efforts to either purchase adjacent property to bring it into conformance or to sell the property to an adjacent property owner. The lower court noted that an adjacent owner was willing to purchase the property for cost. It also found that the owner only provided reasons why a variance would advance his own interests, but not why it would advance the purposes of the Municipal Land Use Law or the zoning code, particularly since the proposed residence would tower over surrounding houses. Lastly, the lower court found that the application was barred under the doctrine of res judicata, since the variance request was substantially similar to a prior owner’s application which was denied.

The Appellate Division affirmed the lower court’s decision for substantially the same reasons expressed by the lower court.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com