MYRNA AND MAX SPINRAD v. BOARD OF ADJUSTMENT TOWNSHIP OF WEST ORANGE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4258-04T54258-04T5

MYRNA AND MAX SPINRAD,

Plaintiffs-Appellants,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF WEST ORANGE and

DONI AND ERIC LANDY,

Defendants-Respondents.

_______________________________________

 

Argued May 17, 2006 - Decided August 3, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. ESX-L-2343-04.

Appellant Max Spinrad argued pro se.

Robert C. Williams argued the cause for

respondents Doni and Eric Landy.

Respondent Board of Adjustment of the

Township of West Orange relies upon the

brief of respondents Doni and Eric Landy

(Sal Anderton, attorney).

PER CURIAM

Plaintiffs filed a complaint in lieu of prerogative writs, alleging that defendant West Orange Zoning Board of Adjustment acted arbitrarily, capriciously and unreasonably when it granted certain bulk variances to defendants Doni and Eric Landy. Following a trial de novo, the trial court dismissed their complaint and entered judgment for defendants. Plaintiffs have appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

The property in question is located at 37 Edgemont Road in West Orange. It is a corner lot at the intersection of Edgemont Road and Stanford Avenue and is zoned R-4, for single-family residential use. Plaintiffs live in the adjoining property at 35 Edgemont Road. The minimum lot size in the R-4 zone is 15,000 square feet. The subject property, however, is significantly undersized. In the trial de novo, the parties appeared to dispute the size of the lot but on appeal, both refer to the lot's size as 9,754 square feet.

At the time the Landys purchased 37 Edgemont in 1996, it was improved with a one-story ranch style home containing two bedrooms. In 1997, they obtained a variance to enlarge the house in the rear. No objections were interposed to this variance request nor to their subsequent request to be relieved of a landscaping condition that was attached to that grant.

In September 2003, the Landys wished to enlarge their home further by changing it from a one-story ranch to a two-story residence with four bedrooms. They filed an application seeking several bulk variances, six in all. These are:

1) permitting a side front yard setback of 27.85 feet, rather than the 30 feet required;

2) permitting a side yard setback of 9.90 feet rather than the 10 feet required;

3) permitting 43% impervious lot coverage, rather than the 40% permitted;

4) permitting a side front/side yard setback of 15 feet and 1 foot respectively, rather than the 30 feet and 10 feet required;

5) permitting a rear yard setback of 21.8 feet, rather than the 35 feet required;

6) permitting construction on an undersized lot.

The last two items listed represented a continuation of previously granted variances.

The Township's Planning Director, Susan Borg, reviewed the application and sent a memo to the members of the Zoning Board which stated in part:

Most of the homes immediately adjacent to the property are single-story ranch type homes, however, there is one two-story home across the street. Several large-scale homes also exist in the neighborhood however; there are not any of these homes in the immediate area of the site.

We note that according to the record before us, the two-story home across the street from the subject property is owned by Mrs. Landy's parents and is the home in which she grew up. Ms. Borg also stated in her memo:

The house does appear to need some cosmetic repair, so renovations would be favorable. However, the proposed renovations and expansions will dramatically change the character of the house and greatly increase its size. Additionally, do (sic) to the proposed large scale of the house which sits on a hill on a corner lot, the height may seem dramatic although no height variance is required. Therefore, I recommend that the Board carefully review this application and its impact on the neighborhood.

The variance application was heard by the Board in two nights of contentious hearings. The proceedings brought out many of the neighbors who opposed the application as well as those who supported it. Unfortunately, tempers occasionally ran high.

The applicants presented their case primarily through the testimony of their architect, Laurance Appel, who designed the addition. He explained that as far as the house itself was concerned, the project was designed, with a few minor exceptions, to stay within the footprint of the existing dwelling. One exception related to the rear of the second-story. This, he testified, was set back several feet from the rear wall of the first story in order to reduce the overall mass of the structure. Another exception was a proposed bay-window on the side facing Stanford Avenue, away from the Spinrads. Further, his design included enlarging the garage to provide room for two cars, rather than one, and to have a circular driveway, entering and exiting on Edgemont.

The objectors presented an expert witness, P. David Zimmerman, a licensed professional planner. He expressed the opinion that the proposed construction would be out of character with the neighborhood and would have a substantial impact upon the neighboring properties. He testified that, in his opinion, there was no proof of any hardship justifying the variances.

At the conclusion of the testimony offered by the parties, the Board called Ms. Borg, the Township's planner. She testified, contrary to the views she had expressed in her earlier memorandum. She stated:

And I think that the philosophy of this Board, and the philosophy of myself, is that when you do see new construction in a neighborhood, it's a positive to the neighborhood. It means that people are putting their money into it, and I think that it encourages other people to put their money into their homes. It gives a stability.

The Board's resolution approved a variance for

side front/side yard setback of accessory use of 15' & 1', instead of 30' and 10' as required; side yar[d] front setback of 27.85', instead of 30' as required; lot coverage of 43%, instead of 40% as required; lot area of 10,000', instead of 15,000'. . .

. Additional variances as requested by the Board are incorporated herein.

The record does not contain a specification of what these additional variances might be. In addition, the resolution as passed gave the Landys more than they had requested. They had modified their plans so that the setback for the driveway was four feet, rather than the originally proposed one foot. The resolution, however, granted the one-foot setback originally requested.

After passage of the resolution approving these variances, plaintiffs filed their complaint in lieu of prerogative writs. They sought a stay from the trial court, which the court denied. At the conclusion of the prerogative writs trial, plaintiffs renewed their request for a stay pending appeal. That request was also denied.

"Judicial review of the decision of a . . . Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166-67 (1992)).

In these highly controversial and oftentimes debatable zoning cases the courts must recognize that local officials who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance. Therefore, the law presumes that boards of adjustment . . . will act fairly and with proper motives and for valid reasons.

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion . . . . A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable.

[Lang v. Zoning Board of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999) (quoting Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965)) (internal quotations omitted).]

The actions of such boards, however, are not immune from judicial scrutiny and, where appropriate, judicial intervention. "The deference to local boards contemplated by Kramer is not intended to be applied rigidly or categorically, and is predicated on the existence of adequate evidence in the record supporting the board's determination either to grant or deny the variance relief." Ibid.

N.J.S.A. 40:55D-70(c) authorizes a board of adjustment to grant bulk variances. Subsection (c) is further subdivided into two categories, a variance under (c)(1) and a variance under (c)(2). N.J.S.A. 40:55D-70(c)(1) permits such a variance

[w]here: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . .

N.J.S.A. 40:55D-70(c)(2), on the other hand, authorizes a board of adjustment to grant bulk variances "where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ."

Having reviewed this record, we are unable to determine the basis upon which these variances were granted. The application filed sought variances under (c)(1). This subsection of the statute requires establishing a unique condition of the property or structure which results in an undue hardship. N.J.S.A. 40:55D-70(c)(1). The resolution which was passed is entirely silent on the question of hardship; it makes no findings in that regard.

Subsection (c)(2) permits the granting of bulk variances, as we have noted, if to do so would advance the purposes of the municipal zoning, and the benefits flowing from the variance would substantially outweigh any detriment. N.J.S.A. 40:55D-70(c)(2). There are fundamental restrictions on a board's power to grant a (c)(2) variance.

[A] c(2) variance must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL. By definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The variance must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) inquiry will not be on the characteristics of the land that, in the light of current zoning requirements, create a hardship on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.

[Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 122-23 (App. Div. 2000) (internal quotations and citations omitted).]

Here, the resolution merely recites that granting the variances will not impair the general purposes of West Orange's zoning plan, ordinances or master plan and that granting the variances will advance the purposes of the Muncipal Land Use Law. Without more, a reviewing court is left entirely to its own devices to determine the basis for those two statements. We decline to speculate in such a fashion. Witt v. Borough of Maywood, 328 N.J. Super. 432, 454-55 (Law Div. 1998)("The Planning Board did not even describe what type of variance it was granting (hardship:'(c)(1)' or planning: '(c)(2)'). If the court does not understand why the Planning Board did what it purports to have done, effective review is impossible."), aff'd o.b., 328 N.J.Super. 343 (App. Div. 2000).

Finally, we are compelled to comment upon the fact that both parties to this appeal have improperly included within their briefs material that was neither before the board or the trial court. That is "inconsistent with appellate practice." State v. Golotta, 178 N.J. 205, 212 (2003).

A decision which is not grounded in the record is, by definition, arbitrary and capricious. The decision of the trial court upholding the decision of the Zoning Board of Adjustment is reversed, and the matter is remanded to the Zoning Board of Adjustment for further proceedings. We recognize that the house in question has been completed while the Spinrads prosecuted this appeal. The Landys, however, proceeded at their own risk.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

(continued)

(continued)

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A-4258-04T5

August 3, 2006