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Maglione v. Lacey Township Board of Adjustment

A-5489-05T5 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; VARIANCES — A land use board can reject an applicant’s hardship argument if it properly concludes that the applicant could have gained permission from others that would reduce the cost of otherwise expensive improvements suggested by the land use board’s engineer.

A property owner, who was planning to construct a single family residence, sought a variance so that the house could front along a small gravel roadway that accessed an already existing road. The property owner testified before the municipal board of adjustment that being required to improve and pave the roadway would be an unnecessary hardship. He also had an expert testify that emergency vehicles and equipment were able to access the property as a result of improvements made to the gravel roadway, such as a turn-around at the end of the road added ten years earlier by the homeowners who had purchased a property abutting the same roadway. The board denied the property owner’s application, finding that he did not meet the economic hardship requirements. The board, however, found that the property owner could have gained permission to make less expensive improvements, suggested by the board’s engineer to the roadway.

The property owner brought an action against the board to contest its decision. The lower court found that it would have been inequitable to require the property owner to improve the entire roadway and remanded the matter to the board, suggesting that the board consider whether the improvements made by the homeowners ten years earlier were adequate for emergency access or whether certain improvements could have been made. On remand, the board found that the roadway had experienced considerable wear over the ten-year period since it was last improved and believed that a paved roadway was preferable to the improvements made to the gravel roadway. It also adopted an engineer’s suggestion, presented at the first hearing, to the effect that paving the road but not the turn-around would be adequate and less burdensome to the property owner and that the turn-around did not have to be paved. In a second action brought by the property owner against the board, the lower court found that the board’s requirement that the road be paved and the turn-around at the end of the street be improved, was appropriate. The lower court also reduced the property owner’s contribution towards the paving of the road by fifty percent.

The property owner appealed the lower court’s decision, arguing that there was no evidence to support the board’s finding that any road improvements were necessary. The Appellate Division pointed out that it was not realistic for the property owner to expect that the improvements made to the roadway ten years earlier would have been adequate or that there would not have been excessive wear and tear to the roadway from the weight of the construction equipment necessary to build the home and from additional traffic on the road. The Court noted that the roadway already was eroded in certain areas, that it had narrowed from encroaching vegetation, and that the gravel turn-around at the end of the roadway was inadequate for emergency vehicles. Thus, it found that the board acted reasonably when it imposed the conditions and that the lower court did not abuse its discretion or misapply the law in its finding in favor of the board. Thus, the Court affirmed the lower court’s decision and found that the board’s conditions bore a rational nexus to the property owner’s construction plan.

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