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Fewer v. Zoning Board of Adjustment of the Township of Colts Neck

A-3056-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — Where municipal ordinances limiting a building’s footprint and floor area meet statutory and case law criteria and where an applicant cannot show that the requested variances promote the general welfare, a statutory purpose, a land use board may properly deny the variance request.

Without a building permit or necessary variances, a property owner enlarged a dilapidated, nonconforming accessory structure. The building’s already non-conforming footprint and floor area were substantially increased. Its previously conforming height was also increased to where it was non-conforming. There was no question, however, that the new building was aesthetically pleasing and had replaced a structure that was a threat to health, safety, and welfare. The owner also attempted to minimize the structure’s visibility by buffering the structure with vegetation. The owner claimed he was entitled to a c(1) [hardship] variance and a c(2) [where deviation would substantially outweigh any detriment] variance from the applicable bulk variance statute. His variance application was rejected. The zoning board found that the building, while undeniably beautiful, was too large and the deviations too great. The board found no reason to grant additions to an already oversized structure, especially when they would “more egregiously violate” the zone’s setback requirements. Further, it found that the owner provided “no compelling testimony to indicate that the additional building height was necessary or to justify the need for the additions” and the owner already had the “benefit of an existing structure that was substantially larger than which is permitted.” It also believed that the owner had provided no testimony to indicate that the deviation would in some fashion advance the purposes of the Municipal Land Use Law. In this regard, it believed the aesthetic benefits only inured to the owner’s benefit because the structure was not visible from adjoining land. No cost analysis was provided that could have justified refurbishment, rather than demolition, of the existing building and construction of a conforming structure in another part of the property. The board also noted that the owner conceded that had the building had been built from scratch in its present location, the board would have been justified in denying the variances. Finally, the board believed that to grant approval to the applicant would require the board to grant similar variances to any other applicant based solely on the desire to have a larger structure. Doing so would result in a substantial impairment of the zone plan and zoning ordinance.

The owner challenged the board’s ruling, claiming: (a) the board’s determination was arbitrary, capricious, and unreasonable; and (b) the ordinances limiting the building’s footprint and floor area were invalid. The lower court upheld the board’s determination, finding the applicable ordinances were valid. It believed that the board’s decision was not arbitrary, capricious or unreasonable and declared that the owner had conceded that, if this was not a renovation but an application for new construction, the board could have denied his request. The Court observed that any benefit derived from the structure accrued only to its owners, not to the municipality. In upholding the ordinances, the Court ruled: (a) the contested ordinances met all of the requirements set forth in Riggs v. Long Beach Twp., 109 N.J. 601, 611; and (b) the ordinance’s footprint, floor area, and height restrictions promoted the general welfare, a stated statutory purpose, by insuring that accessory structures could not easily be converted into separate residences or businesses. The Court noted that the municipality’s expert, who also wrote the municipality’s master plan, testified that the ordinance met the Riggs criteria because its object was to limit the accessory structure use with the goal of prohibiting their conversion into separate residences. The lower court cited several other municipalities with similar ordinances. The owner appealed.

The Appellate Division affirmed, holding that the lower court did not err when it found the board had not acted arbitrarily, capriciously or unreasonably. In fact, it found that the board had signaled its willingness to permit the renovation of the dilapidated structure but the owner chose to build first and ask for permission later. In connection with the owner’s c(1) application, the Court found that the owner offered no evidence of any “hardship” requiring such extensive modification of an already existing oversized building. Further, as to the request for a “c(2) variance,” the Court held that the applicant failed to demonstrate, as required by the statute, that the benefits of granting the variance to the community would substantially outweigh any detriment to the public good or impairment of the intent and purpose of the zoning ordinance. It noted that the focus of a c(2) case is not on the land characteristics of the land that create a owner hardship warranting a relaxation of standards, but were the characteristics that present an opportunity for improved zoning benefitting the community. Here, the Court agreed with the lower court and the zoning board that only the owner’s purposes would be advanced. Therefore, it, too, denied the variance. The Court also rejected the owner’s contention that the zoning ordinance was invalid. In doing so, it noted that the author of the master plan and the ordinance at issue testified in detail on the manner in which the ordinance met the criteria for validity set forth in Riggs, i.e. that the municipality sought to preclude accessory structures that could easily be converted into separate residences, and it did so by imposing a uniform bulk restriction on such structures – as had at least two other demographically similar municipalities. Thus, it upheld the ordinance.


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