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DeVito v. The Zoning Board of Adjustment of the Township of Middletown

A-1416-09T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES; HARDSHIPS — Where a property owner’s hardship does not arise from the unusual nature of its property, such as when the shape of its lot does not cause the need to erect an oversized fence, the property owner needs to show that the variance it is seeking would not have a substantial negative impact, a difficult burden when the owner’s purposes can be accomplished in a way that complies with the zoning ordinance.

A triangular piece of land had an existing non-conforming six-foot fence along its edge. Low-hanging wires bordered the property, making it impractical to use trees for screening. The owner replaced the dilapidated fence with a new one of the same size without first obtaining a permit or variance. After replacing the fence, the property owner then applied to the zoning board for a variance. The board found that, although the property was uniquely shaped, the owner’s proposal was a substantial detriment to the zoning plan.

The property owner filed an action in lieu of prerogative writs, arguing that the denial was arbitrary, capricious or unreasonable. The property owner emphasized the need to screen the property from traffic and the commercial properties in the area. The municipality responded that the application was properly denied because the lot, although unusual, did not itself create the need for the variance; nothing inherent in the nature of the lot prevented compliance. The lower court reversed the board’s denial and the board appealed, contending that the lower court substituted its judgment for that of its own.

In the appeal, the Appellate Division found that the property owner’s hardship did not arise from the unusual nature of the property; i.e., the shape of the lot did not cause the need to erect a six-foot fence. Additionally, the Court believed that the zoning board had articulated coherent reasons for the denial of the application. Because reviewing courts give great deference to the judgment of land use boards, the zoning board’s findings, supported by the proofs, were binding.

The Municipal Land Use Law requires the seeker of a variance to show that such variance or other relief can be granted without substantial detriment to the public good. Here, the Court found that the property owner failed to show that the fence would not have a substantial negative impact. The record was devoid of proof that the property owner’s purposes could not have been accomplished by the erection of only a three-foot, opaque fence and a six-foot hedge, each of which would have complied with the ordinance.


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