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Murray v. Wallace & Woerner

A-3107-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES; HARDSHIP—Granting a significant dimensional variance to compensate for a builder’s error still requires that the hardship be attributable to a unique feature of the property; it can’t be premised on the economic harm to the builder, and merely imposing a remediation condition on the builder won’t override the underlying principle.

A property owner was approved for a zoning permit to construct a single family residence. During construction, the owner noticed the house was being built in the wrong place. It was less than the required ten feet from his neighbor’s home, ranging from 7.67 to 8.5 feet away. The day after the owner observed this error, he reported it to the municipality’s construction official. A zoning officer visited the site and permitted construction to continue subject to the owner undertaking various remediation measures. The neighbor promptly objected to the construction. The owner then applied for a “C” hardship variance. The local zoning board approved the application, finding that the improvements outweighed any detrimental effect on the neighborhood; that the owner acted in good faith by undertaking substantial remediation measures; and that the project was consistent with the other lots in the development.

On appeal, the lower court held that this was not a proper “hardship” variance. According to it, the board’s correct focus should have been on whether strict enforcement of the ten foot sideline requirement would have caused undue hardship because of the unique conditions of the specific property. Since the board did not do that, the lower court held that the board acted arbitrarily. The Court found that a variance was required because the reason the structure was non-conforming was solely because of the construction mistake. It also held that the board’s findings that the house was “pretty attractive” and was “constructed on pilings which is good for the neighborhood” were irrelevant. It also felt that the two and one-half foot deviation was more than minimal. In fact, it found that such a twenty-five percent deviation was significant, and that light, air, and open space between the residences had been substantially reduced. Finally, the lower court held that, absent the mistake, no variance would have been needed, and the only beneficiary of the variance was the developer. Granting the variance would set a disturbing precedent, allowing the municipality to make a unilateral decision that would permit a developer to blatantly violate its zoning ordinance so long as remedial conditions were imposed. To allow this would be contrary to the general welfare and the public interest.

On appeal, the owner argued that he was entitled to a variance under the principles of estoppel. He argued that since the zoning officer allowed him to continue, the lower court should have been barred from overturning the variance grant. The Appellate Division disagreed, finding that estoppel only applies in cases where a mistake by a zoning official arises out of a reasonably debatable issue in the interpretation of a zoning ordinance. Here, there was no such debatable issue. The zoning ordinance was clear. Consequently, the Appellate Division affirmed the lower court’s holding that the board’s decision to grant the variance was arbitrary and capricious.

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