BRUCE ASHFORTH et al. v. THE PLANNING BOARD TOWN OF WESTFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4684-04T54684-04T5

BRUCE ASHFORTH and EDNA ASHFORTH,

Plaintiffs-Appellants,

v.

THE PLANNING BOARD OF THE TOWN

OF WESTFIELD, UNION COUNTY,

NEW JERSEY,

Defendants-Respondents.

__________________________________

 

Argued January 24, 2006 - Decided February 10, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County,

L-650-04.

Joseph E. Murray argued the cause for appellants (Schiller & Pittenger, attorneys; Mr. Murray, on the brief).

Russell M. Finestein argued the cause for respondent (Finestein & Malloy, attorneys; Mr. Finestein, on the brief).

PER CURIAM

Plaintiffs, Bruce and Edna Ashforth, appeal from a trial court order dismissing their challenge to a decision of the Westfield Planning Board denying their application for a variance.

I

These are the most pertinent facts. Plaintiffs bought lot 51.02 in Block 101 in Westfield in 1966, and built a house on the lot in 1967. The lot measured 55,000 square feet in area and had 125 feet of frontage, which conformed to the existing residential zoning ordinance requiring 100-foot frontage and 20,000 square feet in area. In 1974, they bought the lot next door, lot 51.01, which had the same frontage and dimensions as lot 51.02. At the time, lot 51.01 had septic problems which made it "unbuildable." But plaintiffs bought the lot as an investment, in the hope that one day, it would have municipal sewer service and they would be able to sell it. In 1981, plaintiffs merged their two lots into one lot in order to lower their real estate taxes. They understood when they merged the lots that if they ever wanted to sell lot 51.01, they would need to get subdivision approval from the Planning Board.

In 1988, a neighborhood association called Prospect Association, of which plaintiff Bruce Ashforth was president, successfully lobbied the Westfield Township council to amend the zoning ordinance to increase the required lot size from 20,000 square feet to 40,000 square feet. Mr. Ashforth testified that the impetus for the amendment was "because there [were] some people . . . talking about building cul-de-sacs and putting in a number of houses, and we didn't want that." A 1988 letter from Councilman Bagger to Mr. Ashforth indicated support for the Association's proposal, in order to "preserve the special appearance and wooded quality of upper Prospect Street."

In 1995, the zoning ordinance was again amended to require 150-foot frontage and a 267-foot setback from the street, plus both a minimum area of 40,000 square feet and a minimum width of 150 feet measured at the 267-foot setback. Plaintiffs' combined lot met those requirements, but the two separate lots 51.01 and 51.02 would each be nonconforming. Mr. Ashforth testified that he had no contemporaneous knowledge of the 1995 ordinance when it was proposed or adopted.

In 1999, the Site Plan Committee of the Planning Board conducted a meeting with regard to the expressed interest of four property owners in the Prospect Street neighborhood, including plaintiffs, in subdividing their property. The committee issued a memorandum to the Board concluding that the existing RS-40 zone was a "unique and special zone, a true rural zone within the Westfield's [sic] boundaries" and "that there is no compelling reason to change the current zoning." As a result "the board reaffirmed the RS-40 Zone particularly because of the uniqueness of the character [of the neighborhood.]"

In 2003, plaintiffs filed an application to subdivide their conforming residential lot into two nonconforming lots. They sought variances from the zoning requirements for lot width at the setback line, frontage, and area.

In support of the application, plaintiff's professional planning expert, Richard Lapinski, testified that fifty-six percent of all other lots in the zone were nonconforming. He also testified that the approval of this subdivision application would not create a precedent, because he believed that unlike plaintiffs' property, the neighboring lots could not be subdivided without demolishing the existing homes on those lots. He admitted that the sole basis for his opinion that the property was "underdeveloped" or underutilized was that the Ashforths' house was located on one side of the property rather than in the middle of the property.

Numerous owners of the adjacent lots testified against the application, opining that granting the variance "would have a disastrous effect upon the neighborhood" and expressing concern that the approval would set a precedent with respect to other lots of similar sizes.

II

On this appeal, plaintiffs make the following arguments:

POINT I: THE DENIAL OF PLAINTIFFS' APPLICATION FOR MINOR SUBDIVISION AND RELATED BULK VARIANCES WAS ARBITRARY.

POINT II: THE PLANNING BOARD'S RESOLUTION WAS UNLAWFULLY CONCLUSIONARY AS TO FINDINGS OF FACT AND APPLICABLE LAW.

POINT III: THE TRIAL COURT'S ANALYSIS OF THE FACTS IN SUPPORT OF ITS AFFIRMANCE OF THE DENIAL WAS NOT SUPPORTED BY THE RECORD.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). Judge Pisansky issued a thorough and cogent opinion dated March 10, 2005, properly analyzing the facts and applying the correct legal standards. The record amply supports his decision, R. 2:11-3(e)(1)(A), which we affirm substantially for the reasons set forth in his opinion. We add the following comments.

Courts may set aside a zoning board's decision only when it is "arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). And "a board's denial of a variance is entitled to greater deference than a decision to grant the variance." Omnipoint Commc'ns, Inc. v. Bd. of Adjustment, 337 N.J. Super. 398, 416 (App. Div.), cert. denied, 169 N.J. 607 (2001).

Plaintiffs' variance application was made pursuant to N.J.S.A. 40:55D-70c(1), which permits a planning board to grant a variance

Where: (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, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship.

They also based their application on N.J.S.A. 40:55D-70c(2), which permits a variance

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.

They were also required, under N.J.S.A. 40:55D-70, to meet the following "negative" criteria:

No variance or other relief may be granted under the terms of this section . . . without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

The Board's resolution set forth its factual findings obliquely in the form of a discussion of the comments of the individual members rather than as the findings of the Board as a whole. This was improper. Nonetheless, it is clear both from the resolution and from the transcript that all but one of the Board members concluded that granting the application would be detrimental to the unique, rustic character of the neighborhood which the zoning ordinance was intended to preserve. While the Board's resolution should have set forth its factual findings in a different form, we are satisfied that a remand is not required. The record strongly supports the clear consensus of the Board members. Moreover, applying the statutes quoted above, plaintiffs' application was deficient as a matter of law. Had the Board granted the application, reversal would have been required.

Plaintiffs' application could not satisfy the requirements of section c(1), because there is nothing unique or exceptional about their property. It is simply a large rectangular lot, similar to the lots owned by many of their neighbors. It is also similar in size to the lots that surround it. The fact that plaintiffs' house happens to be located on one side of the property rather than in the middle of the property does not render the property itself unique. Nor does the fact that they purchased the second lot for investment purposes qualify them for a c(1) variance. Application of the zoning ordinance may defeat plaintiffs' hopes or expectations, but that is not a "hardship" for purposes of the statute. See Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 53-56 (1999)(hardship must stem from the unique condition of the property, such as its exceptional shallowness or narrowness, and not from the personal situation of the owner.) We find no merit in plaintiffs' claim that the property is "underutilized" merely because, like some of their neighbors' lots, it contains significantly more than the minimum area required by the zoning ordinance.

Plaintiffs' application also did not meet the requirements of section c(2). A c(2) variance may not be granted merely to serve the purposes of the property owner. Rather, it must serve the purpose of the surrounding community:

By definition . . . no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in 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.

[Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988).]

In Kaufmann, the zoning ordinance "sought to encourage a more intense use of the land," and the Township was "discouraging large lot zoning in this area of town." Id. at 564. The applicant's subdivision proposal furthered the purpose of the ordinance by avoiding underutilization of their land. Id. at 564. The present case presents the opposite situation. The record contains substantial evidence that the zoning ordinance was intended to preserve large lots and discourage more intense use of the land, thereby preserving the bucolic character of the neighborhood. Plaintiffs' application ran directly contrary to the purpose of the zoning ordinance. Consequently, they could not satisfy either the positive criteria of section c(2) or the negative criteria of N.J.S.A. 40:55D-70. See Cicchino v. Berkeley Heights Twp., 237 N.J. Super. 175, 182-83 (App. Div. 1989)(holding that c(2) variance was properly denied where township amended its zoning ordinance to reduce permitted density and subdivision would only benefit the applicants); Lang, supra, 160 N.J. at 57. (To satisfy the negative criteria, the applicant must show that "the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate.")

 
Affirmed.

(continued)

(continued)

10

A-4684-04T5

February 10, 2006