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Leonard v. Haworth Zoning Board of Adjustment

A-3958-07T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; HARDSHIP — Where a prior property owner created a steep sloping condition, the property’s peculiar physical condition is deemed to be self-imposed and a hardship variance is unwarranted even when requested by a subsequent property owner.

A property owner applied for a variance to build a driveway on his undeveloped lot. A bridge, serving as a one-line overpass over a rail line, was located less than fifty feet from the owner’s proposed driveway. The owner’s traffic expert testified that if the proposed driveway were placed on the northern end of the owner’s property, drivers could safely make right turns in and out of the driveway but could not make left turns. The owner’s traffic expert did not explore placing a driveway at the southern end of the owner’s property. One of the owner’s engineers testified that it was possible to locate the driveway at the southern end of the owner’s property, while his other engineer disagreed.

The zoning board denied the owner’s variance application, finding that allowing access to the property from the northern end would result in substantial detriment to the public good. It also found that the benefit to the property did not outweigh the detriment to the zoning plan. The zoning board determined that constructing a driveway so close to the bridge would create safety hazards for vehicles leaving and entering the property, as well as for pedestrians using the bridge.

The owner unsuccessfully appealed to the Appellate Division which noted that the owner had applied for a hardship variance based on the “physical peculiarity of the property.” However, the application was not based on the property’s failure to meet frontage and size requirements. Rather, it was based on the difficulty of accessing his property due to the steep sloping terrain on the western and southern borders of his property. Hardship variances are granted if the hardship is solely due to the peculiar physical condition of the property, but not for personal hardships to the owner. A hardship variance is only appropriate if the property owner is blameless for the nonconformity. If a hardship was created by the property owner or by its predecessor-in-title, then the hardship is deemed to be self-imposed and no variance relief will be granted. This is the case even with the passage of time or the fact that the owner is not significantly related to the original owner that caused the situation.

In this case, the Court found that a prior property owner was responsible for creating the steep sloping conditions on its southern and western borders. Therefore, the property’s peculiar physical condition was deemed to be self-imposed and a hardship variance was unwarranted. The Court also found that the property owner failed to satisfy the positive and negative criteria required for a variance. The owner needed to show: (1) that the proposed use promotes the general welfare because the property was particularly suited for that use; (2) that the variance could be granted without substantial detriment to the public good; and (3) that the variance was not inconsistent with the master plan and zoning ordinance. In this case, the evidence showed that only right turns into and out of the driveway were safe, provided that other vehicles driving across the bridge were not exceeding the bridge’s five mile per hour speed limit. The owner’s traffic expert was unwilling to testify as to the safety of the driveway in instances where other drivers exceeded that speed limit. Further, local residents testified about traffic flow on the bridge as well as pedestrian traffic, including students using it after school. The Court agreed with the lower court that the zoning board’s primary concern in denying the variance was the safety of vehicles and pedestrians.

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