Skip to main content



Terlemezian v. Zoning Board of Adjustment of the Borough of Waldwick

A-0513-07T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; DEED RESTRICTIONS — Where a land use board wrongfully expands the language of a deed restriction, it is acting arbitrarily, capriciously, and unreasonably such that its decision to deny a variance request on the basis that the restriction will be violated is subject to remand to the board for further review.

Landowners filed an application for variance relief from minimum lot width and side yard setback requirements to allow them to construct a single family home and a separate garage on three adjoining lots in a residential district. Each lot was undersized and two of the lots were burdened by a deed restriction providing no primary building could be constructed solely on each lot. The application indicated that eighty-nine percent of the home would be located on one lot and the rest on the other, while a portion of the driveway would be on the third lot. At a hearing, experts testified that building a home on the lots would be the highest and best use. The board denied the variance, citing the failure to satisfy the required positive and negative criteria. It believed that the home would not be in keeping with the character of the neighborhood and surrounding homes, and that the variance would circumvent the deed restriction. The landowners filed an action challenging the board’s decision, but the decision was upheld by the lower court. The landowners appealed.

The Appellate Division reversed and remanded to the lower court for further proceedings. It found that the board’s reliance on the deed restriction to deny the variance application was arbitrary, capricious, and unreasonable, because the board wrongfully expanded the language of the deed restriction. The Court found that the board’s denial rested in large part on the deed restriction, which it held clearly applied only to a construction of a primary building solely on one lot. The Court found no prohibition against building a primary building on portions of the lots. It viewed the application as an effort to comply with the deed restrictions, not circumvent them. The Court also held that the board failed to produce any findings of fact to support its denial other than one neighbor’s objection that it would no longer have access to the landowners’ park-like wooded property for which they paid neither property taxes nor for municipal upkeep.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com