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Wilson v. Brick Township Zoning Board of Adjustment

A-5735-09T4 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — A land use board that considers evidence presented by an applicant and decides, based upon the board’s reasonable conclusion that there would be a more preferable location for the proposed improvement, that the applicant has failed to meet the positive criteria for granting a variance does not act arbitrarily, capriciously or unreasonably.

The owner of a single-family house in a single-family residence zone expanded a pre-existing deck. It covered the entire back of the property. The deck, like the property, was not quite rectangular. In addition to expanding the deck, the homeowner built a pool on the east side of the deck. It extended slightly beyond the rear property line and within feet of the bulkhead line. The project was completed without construction permits or the required bulk variances. Litigation ensued, and the homeowner was fined.

The homeowner then applied for the required bulk variances. They were denied, and the denials were affirmed by a lower court. However, the Appellate Division reversed the decision. When it did so, it affirmed the denial of a rear-yard setback variance, and permitted a zero setback instead of the required fifteen feet. It held that the homeowner was not entitled to a variance because the improvement was of no apparent benefit to the community and because the illegal construction could not be said to have advanced the purposes of the Municipal Land Use Law (MLUL). However, the Appellate Division granted a rear-yard setback variance with respect to the deck.

In addition to the rear-yard setback variance sought for the deck, the homeowner had also sought, and had been denied, rear- and side-yard setback variances for the pool; side-yard setback variances for the dwelling, deck, and a shed; and a maximum lot coverage variance. The Appellate Division declined to decide whether such variances should have been granted, finding that neither the homeowner nor the municipality adequately addressed the criteria for those variances. In doing so, it noted that the homeowner’s expert had testified that it was impossible to construct the deck and pool in compliance with the zoning requirements, but had given no details to support that conclusion.

On remand, a hearing was conducted by the local zoning board, at which time testimony was given on the homeowner’s behalf by a professional engineer and planner. The expert testified that a pool could not be fit onto the deck in conformance with municipality’s rear-yard setback requirements. He was then asked why the pool could not be smaller and be moved to the west, where the deck was larger, thereby decreasing the extent of the variances requested and bringing the pool within the property line. He did not directly answer that question. He was then asked whether he had expertise with respect to pools, and he said “no.” He also admitted that he had seen smaller pools in the municipality. The expert then testified that moving the pool to the west would provide more room for the pool, but it would provide less room for the people who would be using the deck. At the conclusion of the hearing, the board voted to grant the maximum lot coverage variance and setback variances for everything but the pool. The homeowner then filed an amended complaint in lieu of prerogative writs, demanding judgment that the board’s decision be set aside.

On appeal, the Appellate Division noted that appellate courts disturb land use board determinations only where they are arbitrary, capricious or unreasonable. The homeowner argued that because he was entitled to a rear-yard setback variance for the deck, he should have been entitled to a similar variance for the pool as well. On review of the record, it was clear that the board did not ignore the evidence presented by the homeowner. The zoning board had concluded that, although the homeowner argued that the positioning of his house created an extraordinary and exceptional situation uniquely affecting the property, he failed to demonstrate that the situation created peculiar and exceptional practical difficulties that could only be resolved by granting the variances for the pool in its present location. The board found that the homeowner had failed to meet the positive criteria for granting a variance because the pool did not need to be where the homeowner had located it. Rather, a preferable location would have been on the opposite side of the deck, where greater setbacks could have been achieved, more circulation around the pool would have been possible, egress from the house would have been facilitated, safety concerns would have been alleviated, and the pool could have been constructed within existing property lines. In affirming, the Court found nothing arbitrary, capricious or unreasonable in that conclusion.

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