Case Law Summaries

Fay v. Belmar Zoning Board of Adjustment

• Opinion Date: May 7, 2008
• Real Property Law
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ZONING; HARDSHIP — The narrowness of a lot can constitute a hardship that justifies the granting of a variance for setbacks and it doesn’t matter if the land use board could have approved a better or different building plan so long as the plan it approves is not detrimental to the neighborhood.

A homebuyer purchased a corner property that contained a single-story house used as a rental property. The house did not conform to the municipality’s setback requirements. The homebuyer wanted to replace the house with a three-story house, but the property was zoned for a maximum of only two and one-half stories. His construction proposal, which had been twice revised from earlier proposals, conformed to the maximum height requirements, but only to one of the two front yard setback requirements. The homebuyer, however, proposed a front porch that would have extended eight feet into the front yard. That conformed to the setback requirements. The proposals for the rear and side yards, however, did not conform to the setback requirements. The homebuyer’s revised proposal still contained a third floor suite for the homebuyer’s mother and for a rooftop swimming pool with a deck. After a hearing before the municipal zoning board of adjustment, the board approved the homebuyer’s bulk variance request and approved his revised proposal.

Three objecting neighbors sued to set aside the board’s granting of the variances. The lower court conducted an on-site analysis of the site and of other properties in the area. It measured the porches on the properties and checked the views from the other properties. The lower court’s analysis also took into account discussions with property owners in the area. It affirmed all of the variance requests approved by the board except for the variance that allowed construction of a third floor. The lower court found that a third floor would have changed the character of the neighborhood, created a detriment to the surrounding properties, and impaired the intent and purpose of the zoning plan.

On appeal, the Appellate Division pointed out that a lower court, acting as a fact finder, is permitted to visit a property to better understand an applicant’s request, but not to expand the evidence on the record. It also pointed out that due to a municipal board’s familiarity with local conditions, boards are given considerable deference by the courts. It further pointed out that denials of variances receive even greater deference than approvals. Here, the Court found that since the lower court’s visit improperly supplemented the record, it would not consider the lower court’s on-site observations, and limited its analysis to the record that was compiled by the board. It noted that the homeowner’s variance requests required a showing of a hardship and that such a showing had to be based on a detriment resulting from a property’s physical characteristics and not by reason of a property owner’s personal hardship. The Court also noted that a proper analysis centers on whether compliance with zoning ordinances would have caused hardship by reason of a property’s unique condition and that an applicant needs to establish the degree to which its property’s use was inhibited. It noted, from the record, that the property in question was an undersized lot, was a corner lot, and that conformance to the setback requirements would have resulted in a house that was only twenty-five feet wide, five feet short of the thirty-foot minimum.

The Court found that the board properly considered the narrowness of the lot as constituting a hardship that justified the granting of the variance for the requested setbacks and that approval of the request improved the conditions of the property to the benefit of the neighborhood by replacing a rental with a single-family residence. It deferred to the board’s conclusion that the detriment arising from obstructed views was minimal compared to the benefit that would result from the new construction. The Court rejected the neighbors’ argument that the proposed house could have been twenty-nine feet wide and would not have been detrimental to the neighborhood, pointing out that it was not the place of a reviewing court to determine whether a better or different plan should have been considered. It also deferred to the board’s ruling that if the proposed third floor was scaled down and the height of the house was reduced to the required thirty-five feet, then, in conjunction with the hardship of an undersized lot, it was proper to grant a variance for the third floor. In sum, the Court affirmed those parts of the lower court’s decision upholding the board’s variance requests, but reversed that part of the lower court’s decision which had overruled the board’s granting of the request for the third floor variance.

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