Skip to main content



Fleres v. Zoning Board of Adjustment of the Borough of Bradley Beach

A-4916-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; HARDSHIPS — If a variance is necessitated by reason of a property’s physical characteristics and not because the owner desires to deviate from the zoning plan, the property owner meets the hardship requirements.

A duplex residential building was situated in a residential beachfront zone. The two homes shared a common wall, but each had its own property lines and each was separately titled. The owner of one side applied to the zoning board of adjustment for bulk variances for a one-story addition to her side. Although the proposed use was conforming for the zone, due to the undersized nature of the lot the applicant needed bulk area variances. At the hearing, the applicant claimed that the shape, size, and nature of the structure created a hardship by reason of the practical difficulties in constructing the proposed addition. The owner of the other half objected to the applicant’s contractors encroaching or accessing his side to build the addition because he did not wish to be exposed to liability. In addition, the neighbor was concerned that a proposed zero setback would preclude or constrict his future prospects to add to his side of the duplex. Despite the applicant making certain modifications to lessen her project’s negative impact on the neighborhood, the board denied the application. She challenged the board’s decision.

The lower court affirmed the board’s findings. Although it agreed that the board’s resolution failed to set forth specific findings supporting its denial decision, it concluded that the hardship was personal and further resulted from the owner’s desire to build an enclosed porch. The Court also found that the homeowner failed to satisfy the negative criteria imposed by the applicable statute. The homeowner appealed again.

In that appeal, the Appellate Division reversed and directed that an order be entered approving the application, as amended for side yard setbacks and drainage provisions. The Court held that the board had failed to follow statutory guidelines and therefore improperly exercised its discretion. It noted that the basis for the variance request rested solely on a hardship related to the property’s narrow configuration coupled with the need to respect the existing structures lawfully on the lot. The homeowner had presented proof to the board that the narrowness of the property only permitted construction behind her existing home. Her request to deviate from the zone plan was based solely on the undersized nature of the lot. This, the Court believed, was an acceptable basis for hardship relief under the Municipal Land Use Law. Further, the Court held that the lower court erred, as a matter of law, when it dismissed the homeowner’s action after concluding that the hardship was “personal.” It further held that the record unmistakably showed that the variance was necessitated because of the property’s physical characteristics, not because the owner desired to deviate from the zoning plan. As to the negative criteria, the Court found that the record revealed nothing to support a finding that the shape of the home, if modified, would create a structure so different from others in the neighborhood so as to constitute a “substantial detriment to the public good” or impair the intent and the purpose of the zone plan in violation of the municipality’s zoning ordinance. Therefore, the Court held that the board’s “naked conclusions to the contrary, as accepted by the Law Division judge, [were] unsubstantiated.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com