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Ward v. The Zoning Board of Adjustment of the Borough of Paramus

BER-L-5534-08 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — It is proper for a land use board to delve into an applicant’s prior activities in order to determine if a claimed hardship was self-created, but a board cannot focus on investigating whether certain improvements were sanctioned or illegal because to do so would invade the exclusive province of the governing board to enforce its zoning ordinances.

A property owner sought a variance to complete a deck he was building. The municipal zoning board denied it. The board focused much of its attention on the applicant’s history of failing to request building permits for many home improvements. In contrast, the resolution authorized a nunc pro tunc building permit for a fence on the property even though he never applied for such relief. Also, it ordered removal of another fence on the property. After the ruling, the applicant became aware that one of the board members was a close friend with a municipal official with whom the property owner had an adversarial relationship. In fact, the official was a defendant in a whistle-blowing action brought by the applicant against the municipality while the property owner was a municipal employee. The applicant sued the board and the municipality, claiming that the board had acted arbitrarily, capriciously, and unreasonably in denying his variance application. He further claimed that at least one board member had a conflict of interest. The municipality counterclaimed, requesting an order requiring the applicant to remove “all non-conforming structures” from his property.

The Law Division vacated the board’s denial of the variance to complete the applicant’s deck and remanded the matter for a new hearing. The Court held it was proper for the board to delve into the applicant’s prior activities in order to determine if the claimed hardship was self-created. Nevertheless, the Court ruled that the board’s focus on investigating whether the improvements were sanctioned or illegal took it beyond its jurisdictional mandate because it invaded the exclusive province of the governing body to enforce the zoning ordinance. This action by the board, together with its ultra vires award of an unapplied-for variance and its directive to remove a portion of another fence, convinced the Court that the board’s decision was arbitrary, capricious, and unreasonable.

As to the conflict of interest issue, the Court found that there was an extensive personal relationship between a board member and the applicant’s adversary in another legal proceeding. Because the board member did not recuse himself and actually participated in the board’s decision-making, the Court reversed the board’s determination. The property owner was given another opportunity to apply for a variance without the input of the recused board member. The Court, however, held that the mere circumstance that the board was aware of a dispute involving the applicant, the governing body, and other municipal officials was not a reason to conclude that the board could not be fair and impartial. It noted that the property owner, at the hearing to be held, was free to make appropriate inquiries of each member of the board concerning his or her knowledge of the other litigation and of his dispute with the municipality. Finally, regarding the structures on the applicant’s land that were installed without permits, inspections or variances, the Court rejected the applicant’s request to estop the municipality from enforcing its ordinance. The Court held that a municipality represents all of the people within its boundaries and its ordinances are presumably for the benefit of the community as a whole. In addition, the Court ruled that the applicant could not claim the municipality was estopped from acting because he provided no evidence that he had relied upon any representations or actions of the municipality to his detriment. Further, a municipality has a non-delegable obligation to enforce the zoning law and its local zoning ordinances. Thus, the Court held that the board was entitled to an order for removing and inspecting these non-conforming structures. Likewise, the applicant was entitled to apply for any needed variances. The Court’s order to remove the offending improvements was set far enough into the future to give the parties sufficient time to expeditiously complete all proceedings and to proceed with an appeal in the Law Division if either party desired.

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