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Ten Stary Dom Partnership v. Mauro

A-1083-10T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING — When an applicant requests the granting of bulk variances based on undue hardship, a land use board should not consider drainage or similar issues that are generally relevant to obtaining site plan approval rather than bulk variance approval.

A municipal planning board initially approved a bulk variance application for a property owner who had inherited an irregular lot with just ten feet of frontage in a place where fifty feet was required. The board first expressed its concern about drainage problems, limited access for emergency personnel, and that the design of the proposed structure would not fit into the aesthetics of the surrounding homes. However, after finding that denying a bulk variance for the frontage requirement would result in an undue hardship and that the applicant had adequately addressed concerns about emergency access to the property resulting from the lot frontage variance, the board approved the application. As a condition of the approval, the applicant was required to fulfill certain conditions, including submitting a drainage plan for the municipal engineer’s approval at the time of a site plan application.

In connection with an objector’s prerogative writ suit, it was discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts. Thus, the bulk variance application was remanded for a new vote following a review of the transcripts by all of the board members. This time, the board voted to deny the bulk variance. In its resolution, the board based the denial on the applicant’s failure to provide “affirmative testimony … by any competent engineer … on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”

The applicant appealed, and the Appellate Division found that the board’s denial to have been arbitrary and unreasonable in light of the board’s emphasis on deficiencies in the drainage plan. The Court emphasized that the applicant’s role in his bulk variance application was simply to satisfy the positive and negative criteria associated with the bulk variance. It found that the applicant had addressed the positive criteria, with a demonstration that the irregular shape of the property necessitated a bulk variance, that it would create an undue hardship if the variance were denied, and the property would become useless. Further, the applicant had satisfied the negative criteria with testimony from the fire department addressing the emergency access issues created by the limited lot frontage.

The Court noted that drainage issues, at the center of the board’s denial, were generally relevant to obtaining a site plan approval rather than a bulk variance and found that the applicant had no obligation to convince the board that a drainage plan existed at the time of the bulk variance approval. The board’s skepticism that such a plan could be generated, and subsequent denial of the bulk variance application based upon the applicant’s failure to address this anticipatory issue was “unreasonably speculative to consider … when denying his requested variance.” As the Court’s opinion noted, the board could still deny permits if the applicant’s engineers were unable to develop an adequate site plan or if the drainage plan required elements that did not fit with the aesthetic standards of surrounding houses. However, testimony given on the property owner’s behalf established that an appropriate drainage site plan was possible. Therefore, the variance denial was deemed unreasonable.

Finding that the board should have limited its consideration to the bulk variance criteria only, the Court rejected the board’s denial and remanded the application.

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