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Duffy v. Upper Township Zoning Board of Adjustment

A-5733-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES; HARDSHIP—The terms “unnecessary hardship” in one section of the Municipal Land Use Law and “undue hardship” employed in another section of the Law are interchangeable.

A property owner sought to construct a single-family residential dwelling. The owner’s application for a building permit was conditioned on paving the remaining unimproved woodland portion of a road upon which the property would front, as required by N.J.S.A. 40:55D-35 and 36. The estimated cost to pave the road ranged from $18,000 to $22,000. The owner sought a variance to build a house diagonally facing the non-improved portion of the road, rather than directly facing the unimproved section. She proposed to access the property through the crushed concrete and gravel portion of an existing adjacent road by constructing an eighteen-foot wide driveway. The owner’s engineer argued that this construction would considerably improve the adjacent road and would be suitable for use by emergency vehicles to access the residence.

After a hearing, the local zoning board denied the variance application and adopted a resolution which relied on the municipality’s plan to protect road frontages through a reduction in the number of unimproved roadways and by increasing the number of homes built on improved roadways. To reject the variance application, the board relied on N.J.S.A. 40:55D-35, which requires adequate access to all buildings for emergency vehicles. The only exception to this requirement is where the applicant faces practical difficulty or unnecessary hardship. This meant that the property owner had the burden of proving that paving the access road in question would have resulted in practical difficulty or unnecessary hardship, or that the circumstances were such that the structure need not be related to a street. The owner’s main argument was that the cost of paving the road would result in an unnecessary hardship. Thus, she tried to avoid constructing a roadway by attempting to run a driveway across several lot lines to an adjacent roadway. That roadway had been used for many years and was capable of handling emergency vehicles. The board rejected this approach, finding that a financial burden is not a basis for unnecessary hardship. Aside from that, the applicant failed to produce sufficient evidence of other practical difficulty or unnecessary hardship that would support a variance. The board’s objection was that the applicant’s plan created two streets that would dead-end on unpaved woodland roads. On the other hand, if the applicant complied with the statutory requirement by fronting the house on a paved street, circulation and road access would be greatly improved.

The lower court reversed the board’s decision, concluding that the owner would suffer an unnecessary financial hardship, which the court considered a lesser standard than undue hardship, and that the board had acted arbitrarily and capriciously in denying the variance.

The Appellate Division disagreed. Since municipal agencies are best equipped to review variance applications due to their awareness of the community’s interests, review of the agency’s decisions must focus on whether there is sufficient evidence to reasonably support the board’s actions. The Court thought the dispute was over the concept of “hardship.” The lower court decided the case on the ground that paving the road would result in an unnecessary or undue financial hardship, relying on an apparent difference between the standard of “unnecessary hardship” found in section 36 of the Municipal Land Use Law, and the standard of “undue hardship” found in section 70. The Court disagreed, holding that the two terms had been interchangeable for decades. Regardless of the term used, there is no difference in the standard to be applied and, importantly, financial hardship does not amount to unnecessary or undue hardship.

The Court also felt that the lower court impermissibly substituted its own judgment for that of the board. In reviewing a local board’s decisions, a court must not review the wisdom of the decision, but rather only whether the board could have properly reached its decision based on the evidence before it. Accordingly, because the Court felt the board did not act arbitrarily or capriciously, it reversed the holding of the lower court, and affirmed the board’s denial of the variance application.


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