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Endreson v. Dover Township Zoning Board of Adjustment

A-2111-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — A property owner does not have to cure the hardship of an undersized, but developed, lot by selling its lot to cure nonconformity, and even if the property owner applies for a variance with the intention of demolishing the structure, the owner still has no obligation to cure the nonconformity by attempting a sale because the demolition is part of an integrated plan to reconstruct a new building.

A preexisting, non-conforming structure was damaged by fire in 2003. Although the exterior remained intact, the homeowner applied for a bulk variance to demolish the house and to construct a new home on the property. The municipality’s zoning board granted the application. The owners of several adjoining lots brought an action in the Law Division to reverse the board’s decision.

The lower court remanded the matter to the board to consider whether the homeowner’s application should have been granted based on the criteria set forth in the applicable statute. On remand, the board conducted an inspection of the site and additional testimony was taken. It then ruled that the application met the criteria for the variances in question and approved the application. The adjoining owners again challenged the board’s decision.

The lower court upheld the zoning board’s ruling. It construed the obligation to buy or sell a non-conforming vacant lot to an adjoining owner inapplicable because the homeowner’s lot was not vacant. It also ruled that the board had sufficient credible evidence on which to base its grant of variances. The court noted that the board’s actions thus were not arbitrary, capricious or unreasonable and dismissed the matter. The neighbors appealed again.

The Appellate Division affirmed, holding that it is settled law that a property owner should not have to cure the hardship of an undersized lot by selling the lot to cure a nonconformity when its lot is developed. The Court found that once the positive and negative criteria under the statute have been satisfied, an applicant is entitled to a variance. The adjoining owners claimed that where the existing structure is to be demolished, the property owner holds only vacant land and the owner’s right to continue use the property in a manner inconsistent with existing zoning regulations terminates. Here, the Court found the demolition plan was part of an integrated plan and found that the owner had the right to reconstruct the house within its present footprint. It also held that no demolition had yet occurred at the time the board adopted the resolutions approving the variances. Moreover, even if the lot was deemed vacant, the Court held that it was within the board’s discretion to impose or not impose a condition on its acceptance requiring the owner to present a binding offer to sell the vacant lot to his neighbors. It is not mandatory to impose such a condition. It also found that the owner, in this case, had proved an exceptional and undue hardship because the house was destroyed by fire.

The neighbors also argued that even if the positive criteria for the variances were met, the negative criteria were not satisfied. The Court rejected this contention, ruling that the variances granted did not merely advance the property owner’s interests, but also enhanced the visual appearance of the street and environment and significantly improved road safety. Lastly, it found that the size of the house would have no negative impact on the value of homes in the area that and that no height variance was required.

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