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Wilson v. Brick Township Zoning Board of Adjustment

2009 WL 137142 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Where an applicant provides no proof that it is impossible to construct its proposed project in a manner that would not require a variance, a land use board may deny the variance request.

The owner of a house abutting a bay expanded a deck that already covered most of the backyard. The deck had a swimming pool in it. The homeowner never obtained permits for the construction and was eventually fined. Since the work performed did not comply with zoning requirements, the homeowner filed an application with the zoning board of adjustment seeking bulk variances for rear and side yard setbacks. At a board hearing, an expert witness for the homeowner testified that the entire neighborhood had similarly raised decks with pools and that the homeowner’s property would be out of character with the rest of the community if the deck and pool had to be removed. He also testified that the pool and deck were not visible from the street. The board denied the variance and found that, other than the expert’s testimony regarding his visual inspection of surrounding properties from the homeowner’s deck and by looking at aerial photos, there was no evidence that the surrounding properties had permits for their decks and pools. The board also found that the homeowner did not demonstrate a hardship to warrant the grant of his variance request. On an action brought by the homeowner against the board, the lower court found that the board’s denial was supported by the evidence on the record and was not arbitrary, capricious or unreasonable.

On appeal, the Appellate Division, in agreement with the lower court, found that the testimony by the expert for the homeowner, to the effect that the deck and pool were not visible from the street, was not sufficient to make the deck and pool into a visual improvement that would have benefitted the community. It found no proof from the homeowner that it would have been impossible to build the deck and pool in a manner that would not have required a variance, but also found that the lower court had failed to address this question as well. As a result, the Court affirmed the board’s denial of all of the homeowner’s variance requests with the exception of the one for the rear yard setback from the deck, which was reversed and remanded. On remand back to the board, the Court directed the homeowner to provide dimensions of the existing deck and pool and to explain the effect that the zoning ordinances would have had on its construction and for the board to make a determination based on the additional evidence.

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