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Finley v. Leonard

A-1016-02T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—Making a home more convenient for a handicapped occupant is a good thing, but for the purposes of evaluating a variance request, it does not constitute more than personal grounds and does not speak to concerns about the physical impact such improvements may have on neighboring properties and the zone.

A woman proposed to enclose an existing non-conforming patio and presented plans to do so to the zoning officer, who thereafter issued a permit. The patio extended to four feet of the property line between her property and that of her neighbor, “whereas the zoning ordinance required a ten foot side yard setback. After some work had been done, the zoning officer issued a stop-work order and directed that [the woman] apply for a variance.” She did so, and at the variance hearing she testified that she desired to renovate the house to accommodate her husband who was suffering from a spinal cord injury and was wheel-chair bound. “Her architect testified that in enclosing the patio its existing footprint would be observed; that it would be an unheated room and not air conditioned but screened, rendering it more like a screened-in porch than an additional room.” Enclosing the patio would enable the woman’s husband to be able to see a river that other people could generally see from the second story of their house but, because of his condition, that was not possible. A neighbor opposed the proposal on the basis that the existing patio was unobtrusive, but an enclosed patio would “give the appearance of overcrowding our property.” The variance was granted and the neighbor filed suit to overturn the decision. The lower court remanded to the planning board for a detailed findings of facts and conclusions of law and then the matter returned to the lower court. The planning board’s resolution stated that the variance could be “granted without substantial detriment to the public good and [would] not substantially impair the intent and purpose of the zoning plan and zoning ordinance.” It also stated that the side yard encroachment balanced “the needs and concerns of the applicant and the [neighboring] objector.” The lower court reversed the grant of the variance, feeling that variances should not be granted “when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property.” The lower court felt that the applicant failed to demonstrate that the variance was necessitated by the location of the property and failed to preclude any other reasonable placement that “would obviate the need for a variance.” It rejected the applicant’s argument that “making the home handicapped accessible satisfie[d] the special reasons positive criteria, that the proposed alterations to the property, to the patio, would in no way further encroach into the side yard and that the neighboring properties had similar or worse variance conditions concerning encroachments.” It was sympathetic to the needs of the woman’s husband, holding that the board did not base its decision on the locational aspects of the patio, but, instead basing its decision on the personal needs of the homeowner. The Appellate Division affirmed the lower court’s holding and agreed “that the Board focused alone on the value of the variance to the homeowner and failed to consider any benefits flowing from the proposal to the community emerging out of the purposes of zoning.”

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