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Wall v. The Planning Board of the Borough of Brielle

A-0498-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING — A court is required to give greater deference to a land use board’s decision to deny a variance in preservation of a zoning plan, than it would give an approval.

Property owners applied for minor subdivision approval and bulk variances for a single-family home. They intended to subdivide the property into two lots, one for development and one containing an existing house. The property owners’ neighbors objected to the application. The applicants claimed entitlement to the variances because of the exceptional narrowness, shallowness, and shape of their property leading to peculiar and exceptional practical difficulties or exceptional and undue hardship. They claimed they were entitled to other variances because the location of the existing structure created an exceptional situation uniquely affecting the structure lawfully existing on the proposed lot and because the benefits of the deviation would substantially outweigh any detriment. The owners’ expert testified that the lot was already a flag lot. The lot they proposed to create would have provided that flag. Therefore, in essence, the owners were not creating a new flag lot. The expert also testified that the current shortfall frontage deficit of the proposed lot resulted from a prior subdivision application. Nevertheless, she opined that this was not a self-created hardship because the history of the property was “muddled,” and noted that there appeared to be no record of resolutions which indicating what, if any, variances were previously granted and what logic the board at that time used in rendering its decision. Further, there was no evidence that the prior applications were ever perfected. The expert further stated that even if the board found the hardship to be self-created, it would not have impacted the requested variance because the application advanced a number of Municipal Land Use Law purposes.

The board denied the application, finding that: (a) the impact of the proposed development did not outweigh the resulting detriments; (b) insufficient testimony was provided to demonstrate a hardship as required by statute; (c) the proposed plan created a new non-conforming lot contrary to the zone plan and there was inadequate evidence to demonstrate that the benefits of the plan outweighed its detriments; and (d) the objector’s testimony described a severe water runoff condition which, if one of the lots was severed from the existing tract, would no longer be available in its natural state to absorb storm-water overflow. The property owners appealed.

The Law Division vacated the board’s decision and entered judgment granting the variances and approving the minor subdivision. In addition, it ordered the board to execute a deed perfecting the minor subdivision. It held that the decision by the board was arbitrary, capricious, and unreasonable because there was insufficient evidence regarding whether the actions of the prior owner had created a hardship, and because the current application was based on underutilization, not on hardship. The Court also found that the applicants’ expert provided undisputed testimony providing sufficient proof of hardship relating to the existing structure on the property and also proved that granting the variances would advance the purposes of the Municipal Land Use Law (MLUL). It believed the board’s finding of detriment was both non-specific and conclusory. The board appealed.

The Appellate Division affirmed. It used the same standard used by the lower court in reviewing a planning board’s decision; i.e., it would reverse the board only if the board’s action was arbitrary, capricious or unreasonable. It further noted that it would give even greater deference to a board’s decision to deny a variance in preservation of a zoning plan, than it would give an approval. According to the Court, an applicant must prove, as it did here, that the evidence before the board was “overwhelmingly in favor of the applicant.” Thus, it held that the applicants were entitled to the requested variances pursuant to N.J.S.A. 40:55D-70(c)(1) and (2) because the requested setback variances related to a lawfully existing structure and the hardship was not self-created by the prior owner. Further, the uncontroverted testimony of the property owners’ expert established that: (a) the benefits of the requested relief substantially outweighed any detriment, and advanced the purposes of the MLUL, including a more efficient use of the land, and the establishment of appropriate population densities; (b) there was no detriment to the public good; (c) the benefits outweighed the detriments; (d) the variances were not inconsistent with the intent and purpose of the master plan and zoning ordinance; (e) the requested variance would result in drainage improvements; (f) the proposed lot conformed to all other lots on the street and would be in keeping with the character of the neighborhood; and (g) the other proposed lot already functioned as a flag lot and all variances affecting this lot were based on preexisting conditions.

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