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Fernandez v. Township of Bloomfield Zoning Board of Adjustment

A-5977-07T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — Where there is nothing unique about an applicant’s property when compared to most other properties in the neighborhood, there would be no special circumstances to justify a variance based on an unusual or unique condition that makes the applicant’s development difficult.

A house, in a neighborhood of small homes on small irregularly shaped lots, was relatively close to neighboring homes. Its owner applied for, and obtained, zoning and construction permits to add a second floor bedroom. With the approval of the municipal building inspector, it began construction. However, a few weeks later, a municipal zoning officer issued a stop construction order, asserting the project did not meet the bulk and setback requirements of the local zoning ordinances. The owner applied to the municipal zoning board of adjustment for variances. The board held a hearing and took testimony.

The owner’s planning expert testified the house was on an irregularly shaped lot, and that this presented an unusual or unique condition that made development difficult and created the need for a variance. He also said that granting the variance would not block the sunlight available to neighboring houses or otherwise have a negative effect on the surrounding properties. He admitted, though, that had he been asked to design the addition, he might have been able to design a structure that conformed to the zoning ordinance.

The objector’s planning expert testified that all the lots in the zone were small, undersized, irregular lots, none more unique than another. Because of this, the light, space, and air for all would be compromised by the development. Neighbors complained of the development, testifying that the addition would infringe on privacy of neighboring homes, would overshadow backyards, and block views of the sky and neighborhood.

The board denied the application, finding that the addition would be a substantial detriment to the public good because it denied neighboring property owners adequate light, air, and open space, and invaded their privacy. The owner sued to challenge the decision, asserting that the board was prohibited from denying the variance on equitable principles, and that the denial was arbitrary and capricious.

The lower court disagreed, holding there was no arguably legal basis to issue the zoning permit, but that the municipality proactively inspected the addition to determine whether it violated the zoning ordinance. It also concluded the owner completed construction of the addition after being served with the stop construction notice. The lower court next upheld the board’s denial of the variance application, finding substantial support in the record for the board’s conclusion that the owner had failed to prove the addition would not present a substantial detriment to the public good. The court also concluded there was nothing unique about the owner’s property when compared to most other properties in the neighborhood, and therefore there were no special circumstances to justify a variance.

The owner appealed, but the Appellate Division affirmed the lower court’s ruling that there was nothing arbitrary in the board’s decision and that the owner failed to prove the variance would not cause a substantial detriment to the public good. The record supported the board’s factual finding that granting the variances would have caused some of the very harms the municipal zoning ordinance was designed to prevent, including diminishing the neighbors’ light and open space, and invading their privacy.

The Court also held that the municipality should not be estopped from issuing the stop work notice on equitable grounds. It found that to prove equitable estoppel in this circumstance, the owner had to establish that the zoning ordinance was ambiguous and that the municipal official’s interpretation of the ordinance was at least debatable. Here, the owner failed to successfully argue that the zoning ordinance was unclear or that the municipal official’s interpretation was debatable, as opposed to simply wrong. Rather, the zoning office initially acted contrary to an unambiguous ordinance in issuing a zoning permit.

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