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Kallop v. City of Linwood Planning Board

A-3240-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; INTERPRETATION — A land use board is to be given deference when interpreting ordinances if it does so when exercising its delegated jurisdiction, but this does not preclude a claim against the land use board that it is acting arbitrarily, capriciously or unreasonably when it denies an applicant’s variance request.

An owner proposed to subdivide his triangular single lot to create two smaller irregularly-shaped lots. The owner asserted that under the municipal zoning ordinance, a variance for lot depth was not required. At a hearing before the municipal planning board, the owner presented expert testimony that the ordinance’s definition of lot depth did not take into account irregularly shaped or triangular lots. The planning board’s expert responded that the lot depth for such subdivided lots was the “mean” of the two side distances. The board accepted their own expert’s testimony and unanimously determined that a variance was required for the owner’s proposed subdivision. The buyer proceeded to offer evidence in support of a variance application, suggesting that the proposed lots conformed to all other requirements under the zoning ordinance, including lot area, frontage, width, and setbacks. The buyer intended to build a single-family home on each lot, and argued that aesthetic benefits and greater conformance to neighboring lots would result from the grant of a variance. The lots bordered a bike path, and a neighbor who opposed the grant testified that allowing the subdivision would add an additional driveway that would create a safety hazard for cyclists.

The board voted to deny the variance. It said that subdividing an irregular lot would increase the lot’s irregularity and not advance proper zoning purposes. The board was aware that the owner agreed to construct an appropriate sight triangle in the area of the bike path to improve traffic circulation, but found the additional driveway would create a detriment that substantially outweighed the benefits associated with the plan.

The owner sued, challenging the board’s finding that a variance was required for lot depth. The owner also contended that if a variance was required, the board’s denial of the variance was arbitrary and unreasonable. The lower court upheld the board’s determination that a lot depth variance was required. It deferred to the board’s ability to interpret ordinances when exercising its delegated jurisdiction. It determined, however, that the board acted arbitrarily, capriciously, and unreasonably by denying the owner’s variance request. The lower court concluded that a subdivision would eliminate a non-conforming use and front yard setbacks, and found that the addition of single-family residences would be more consistent with other structures in the neighborhood. It also observed that the board focused heavily on the effects the subdivision would have on traffic, but failed to consider that the owner had offered to create a structure to improve visibility and extend sidewalks and curbing. Therefore, the lower court reversed the board’s denial of the variance request and ordered that the application be granted subject to the owner making its proposed traffic improvements. The board appealed.

The Appellate Division affirmed the lower court’s ruling. It found the even though the board had properly determined that the owner needed a variance for lot depth but had acted arbitrarily, capriciously, and unreasonably in denying that variance. It held that the definition of lot depth in the municipal ordinance was sufficiently certain and definite to guide the municipal expert’s interpretation and application. The Court found the interpretation of the ordinance’s definition by the planning board’s expert to be reasonable, and found no evidence indicating the municipality had in the past inconsistently or arbitrarily applied this definition. The Court, however, agreed with the lower court that the board made a decision that could not reasonably be reached on the evidence. It believed that the board failed to give sufficient weight to the many advantages of the subdivision, and gave little or no weight to the owner’s proposals to reduce traffic and visibility concerns.

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