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Jerman v. Zoning Board of Adjustment of the Township of Berkeley

A-3824-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; HARDSHIP — Once a land use board stipulates an applicant’s request for a hardship variance will be granted if the applicant offers its property for sale to adjacent owners or offers to purchase adjacent property, the land use board can only rule whether the property owner satisfied that condition.

An individual owned property with an area of 9,000 square feet and a frontage of fifty feet. It was in a zone requiring that a single-family dwelling have an area of 12,500 square feet and a frontage of 100 feet. The landowner applied for variances and design waivers needed to construct a thirty-foot wide, two story single-family house. The municipality denied the application and the denial was upheld in subsequent litigation. Then, the landowner submitted an application for variances required to construct a smaller structure on the site. A public hearing was held at which the landowner testified that he had sent letters to the adjoining property owners seeking to purchase their lands or to sell his lot to them in order to make the property conform to the zoning requirements. One adjacent property owner did not reply; another refused to sell a portion of his lot, but offered to sell his entire lot; the other offered to purchase the landowner’s property.

The landowner informed the prospective buyer about the procedure it would need to follow if he wished to purchase the property: they both would obtain appraisals of the value of the lot, but the property had to be appraised as if the municipality had granted the variances he requested. The landowner asked the municipality to admit an appraisal he had previously obtained for the property. However, the municipality refused to do so without testimony from the appraiser. The landowner also presented testimony from a professional engineer/planner who explained that the plans for the house had been revised from those previously considered. The engineer asserted that without the variances for lot size and frontage, the property would be zoned into inutility.

The prospective buyer appeared at the hearing and voiced his opposition to the application, stating that the municipality should not grant the variances because to do so would substantially impair the intent and purpose of the zone plan and ordinance. The prospective buyer also argued that the new application was not substantially different from the prior, rejected one. He added that he had not obtained an appraisal of the property’s value.

The municipality denied the application, finding that the variances could not be granted without impairing the intent and purpose of the zone plan and ordinance. The landowner sued, and the lower court reversed the zoning board’s determination, stating that the parties had agreed that the sole and dispositive issue in this case would be whether the landowner had established that he had made reasonable efforts to bring his property into conformity with the zoning requirements by either acquiring an adjoining lot or selling his property to an adjoining landowner at a fair and reasonable price. The lower court also stated that the board had stipulated that if the court found that applicant had satisfied his burden of proof on this issue, it was obligated to grant the variances.

Based on the record presented, the lower court found that the municipality had acted arbitrarily, capriciously, and unreasonably because the landowner had met his burden of proof with regard to his obligation to purchase the adjoining property or sell his land to an adjoining property owner at fair market value. The zoning board appealed.

On appeal, the Appellate Division affirmed the lower court’s decision for substantially the same reasons as stated by the lower court. The Court added that a property owner’s efforts to bring its property into compliance with zoning regulations is relevant to whether application of the regulations would result in an undue hardship. An undue hardship doesn’t exist if the owner of adjacent land refuses to sell neighboring the land at a fair and reasonable price, but does exist if the owner of the non-conforming lot offers to sell his property at a fair and reasonable price and the adjoining property owners refuse to make a reasonable offer. Thus, a municipality may recognize a property owner’s offer to sell his land or offer to purchase the land of an adjoining property owner by conditioning the grant of a variance upon such sale or purchase. Here, the landowner established that he had offered to purchase the properties of adjoining landowners, and that he offered to sell his lot to the adjacent property owners. Thus, the record supported the lower court’s findings that the landowner presented sufficient evidence to show that the applicant attempted to bring his lot into conformance with the applicable zoning regulations.

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