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O’Brien v. Borough of Point Pleasant Zoning Board of Adjustment

A-0361-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; USE VARIANCES — A use variance is required to continue a non-conforming use where the size of the property containing the non-conforming use is reduced by a subdivision.

A property owner owned a “T” shaped lot. The top bar of the “T” contained two duplex housing units and a parking area. The driveway to the main road was along the vertical stem of the “T.” The owner applied for subdivision approval to divide the “T” shaped lot into two separate lots, with the top bar of the “T” being one lot, and the vertical stem comprising the other. Under the owner’s proposal, the main lot was to continue to operate as a rental property with the two existing duplex housing units remaining. The owner intended to build a single family residence within the other vertical lot and proposed to build a new, wider driveway to allow access to the main road from the house and the duplex units.

The zoning board conducted a one-day hearing. During the hearing, the owner testified that he intended to make certain renovations to the duplex units as part of his subdivision plan but he did not indicate if the renovations were contingent upon his ability to secure subdivision approval to build the new house. The owner’s engineer testified that the proposal would result in an updated, more attractive site and the wider driveway would increase safety for the duplex units. A neighbor complained that the proposed development would require the removal of two 250-foot oak trees. The zoning board approved the owner’s application, finding that the failure to grant relief would result in undue hardship to the owner. It also found that the proposed project would contribute to a “desirable visual environment and promote aesthetics as the structures are to be maintained and updated.” The board’s approval was contingent on the owner’s installation of new gutters and siding on the duplex units.

A neighbor sued to set aside the approval, but the lower court declined to do so. It found that the owner had proven the positive criteria for granting a use variance because the expansion of the driveway addressed the general welfare by giving emergency vehicles greater access to the property.

The neighbor appealed and the Appellate Division reversed, rejecting the zoning board’s contention that a use variance was not required for the continued use of the duplex units. The zoning board’s position was based on Puleio v. North Brunswick Township Board of Adjustment, 375 N.J. Super. 613 (App. Div.), a 2005 Appellate Division case which held that an application for subdivision approval for a property that already had a use variance does not need a new use variance. In this case, however, the Court noted that when the duplex units were constructed, duplex housing was considered a permitted use within the municipality. Later on, the zoning ordinance prohibited duplex units, making them a nonconforming use. Therefore, according to the Court, a use variance was required pursuant to Razberry’s Inc. v. Kingwood Township Planning Board, 250 N.J. Super. 324 (App. Div.), a 1991 Appellate Division case which held that a use variance is required to continue a non-conforming use when the size of the property containing the non-conforming use is reduced by a subdivision. Essentially, in this case, the use of the entire property for duplex housing units was originally a permitted use but it became a pre-existing non-conforming use when the zoning ordinance changed to prohibit duplex housing units. Therefore, according to Razberry’s, a use variance was now required for the top bar of the “T” because the size of the property containing the duplex units, a non-conforming use, was to be reduced by subdividing the property.

The Court also found that the owner had not demonstrated the positive criteria, the “special reasons,” for obtaining a use variance. It noted that the zoning board found that the positive criteria were met based on the undue hardship that would result if the owner did not secure a use variance, but the Court found no such hardship existed. It noted that the owner’s property was already occupied by two duplex housing units from which the owner derived rental income. The owner did not have a hardship because he already enjoyed “economically productive use” of his property. The Court then rejected the owner’s argument that the increased aesthetics and widened driveway satisfied the positive criteria.

The Court noted that the improved aesthetics and widened driveway were the zoning board’s basis for finding that the owner had satisfied the negative criteria - that the proposed use would not result in substantial detriment to the public good and would not substantially impair the purpose of the master plan or zoning ordinance. In any event, the Court found that, contrary to the zoning board’s finding, the proposed development would have a negative impact on the aesthetics of the neighborhood because trees and vegetation would be removed and replaced with a house.

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