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Koons v. Planning Board of the Borough of Tenafly

A-4633-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—Even though a court may rule that a land use board has arbitrarily, capriciously, and unreasonably dealt with an applicant’s arguments as to satisfying the “negative” criteria for a variance, it can still rule that the same land use board rejected the same application because it failed to satisfy the “positive” criteria.

A property owner applied to the local planning board for a minor subdivision. The property was an oversized lot, irregular in shape. The owner contracted to sell part of the land. The sale was contingent upon obtaining approval for the minor subdivision that would have created two lots, with ancillary variances. One newly created lot was to accommodate the construction of a new dwelling, which the contractor-buyer intended to build five years after acquiring title. The major variances were for the lot widths of the two parcels. Although each proposed lot conformed with the fifty foot width requirement at the street line, neither met the width requirements of eighty-five feet width at the front setback line.

After the application was heard, it was rejected on the basis of res judicata. The board determined that the owner’s predecessor in title had applied for the same subdivision about 44 years earlier. The lot owner appealed, arguing that his application was dissimilar from the earlier application, and the law regarding variance applications had significantly changed over the past forty years. After additional hearings, the board reversed its earlier decision, agreeing to decide the application on its merits. Then, the board again rejected the application.

There were two types of variances available for consideration. The applicant might meet the criteria subpart c(3) of N.J.S.A. 40:55D-70, the “hardship” variance, or of its subpart c(2), the “flexible” variance. With regard to the negative criteria addressed under c(1) and c(2), the Law Division rejected the board’s finding that granting the application would lead to a “creeping noncomformity,” as the grant of one variance does not serve as precedential value to allow others to subdivide their property in the same manner. In addition, the Court found that the board’s determination that substandard lots would detrimentally affect population concentration was not supported by the evidence. It also determined that although there were certain detriments to the proposed subdivision, they were far from the substantial detriment described by the board. Therefore, the Court held that the board’s determination that the owner had failed to satisfy the negative criteria was arbitrary, capricious, and unreasonable.

However, the Court concluded that the owner failed to prove that the board had acted arbitrarily in determining that the positive criteria required by c(1) and c(2) had not been satisfied. It found that it was within the board’s power to determine that the oversized lot was not, in and of itself, a hardship to the applicant under subsection c(1), and the creation of two subdivided lots was, in fact, a self-created hardship. As to subsection c(2), the Court found that the board did not act arbitrarily by rejecting the argument that, in contrast to an oversized house, two proposed average-sized houses on the subdivided lots would advance the quality of the neighborhood and the zone plan. Although the Court thought the board made an aesthetic mistake, it felt that the decision was not, however, arbitrary or capricious.

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