TROY ENDRESON v. DOVER TOWNSHIP ZONING BOARD OF ADJUSTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2111-07T22111-07T2

TROY ENDRESON, ARDITH LIVI, PETER DEVINE, CHRISTOPHER A. PHILLIPS,

Plaintiffs-Appellants,

v.

DOVER TOWNSHIP ZONING BOARD OF ADJUSTMENT and JAMES WALSH,

Defendants-Respondents.

________________________________

 

Argued: October 2, 2008 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-709-06.

Edward F. Liston, Jr., argued the cause for appellants (Edward F. Liston, Jr., LLC, attorneys; Mr. Liston, of counsel and on the brief).

Frederick R. Wiedeke, Jr., argued the cause for respondent James Walsh (Law Offices of Frederick R. Wiedeke, Jr., attorneys; Mr. Wiedeke, on the brief).

Russo & Cassidy, LLC, attorneys for respon dent Dover Township Zoning Board of Adjust ment joined in the brief of respondent James Walsh.

PER CURIAM

Plaintiffs Troy Endreson, Ardith Livi, Peter Devine, and Christopher A. Phillips contend that the court erred in holding that defendant James Walsh (Walsh) was not obligated to offer his property for sale to plaintiffs as adjoining property owners as a condition precedent to the grant of variances pursuant to N.J.S.A. 40:55D-70c(1) and (2) (referred to as c(1) and c(2) variances) by defendant Dover Township Zoning Board of Adjust ment (the Board) and that the variances granted were arbitrary, capricious and unreasonable. We disagree and affirm.

I.

Walsh is the owner of lot 1, block 708.10, on the tax map of the Township of Dover, otherwise known as 1210 Riviera Drive, Toms River, and has owned the property for over twenty years. His home, which was built in 1922, is a preexisting, nonconform ing structure that was damaged by fire in February 2003. The fire damaged the interior of the home, but the exterior was left intact. The existing home can be repaired. However, Walsh wishes to demolish the house and construct a new home on the property. Accordingly, on October 17, 2005, he applied to the Board pursuant to N.J.S.A. 40:55D-70c to remove the existing home, construct a new home with nearly the same footprint, and install an in-ground swimming pool.

The property is about twenty-five feet wide and 150 feet deep. The lots on each side are considerably larger. The existing home was set at an angle on the lot with one point only one and one-half feet from the front property line on Riviera Drive and other points only three-tenths of a foot from the side property lines. The house has a six-foot-high basement with the basement floor at street level. The second and third floors both have living space. At the second floor level is a deck which extends to the front property line and affords the occu pants "spectacular views of the Toms River." Across the street from the subject property is a public beach on the north shore of the Toms River.

The deck of the proposed house will be five and three-tenths feet from the front property line with the proposed house itself set back twenty-five feet and set parallel to the side property lines with a side yard setback of two and one-half feet. It will be narrower than the existing home by eight and four-tenths inches. The first floor will have a garage, play room, bathroom, and storage closet. The second floor will have a large kitchen/living room, one bedroom, a bathroom, a laundry room, a storage/coat closet, and two decks one large deck in the front and one small deck in the back. The third floor will have three bedrooms, a bathroom, and a small deck in the back. Overall, the proposed home will be twenty feet wide by seventy-seven feet deep, including both decks. The height of the house will be slightly over twenty-nine feet, well within the thirty-five-foot height ordinance limitation. Bulk variances are required for the house and pool. The zoning ordinance requires a fifty-foot frontage on the road. The house without the decks meets the thirty-five percent lot-coverage limitation, but the decks are required to be included in the lot-coverage area because they are more than thirty inches above the ground, necessitating a variance.

The Board considered Walsh's application on December 8, 2005. To accommodate the objectors' concerns, Walsh agreed to amend the plans to eliminate the need for a variance for the pool and to move the house two feet further back from the street. The Board received advice from its attorney that Walsh was not required to buy additional property or offer to sell his property to Devine as a condition for securing the necessary c(1) variances.

The Board unanimously approved Walsh's application on Decem ber 8, 2005, and adopted a resolution to that effect on January 12, 2006. The Board concluded that "the relief requested can be granted without substantial detriment to the public good and without being inconsistent with the intent and purpose of the Township's Master Plan and Zoning Ordinance." The Board further concluded that strict application of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92, and the Township Zoning Ordinance to the lot in question would result in exceptional difficulties or hardship on Walsh. The Board found that the variances were necessitated by the extreme narrowness of the lot. Thus, it granted Walsh's application for c(1) vari ances for deficient lot area, lot width, lot frontage, front setback, side setback, combined side setback, and excessive lot coverage.

Plaintiffs filed an action in lieu of prerogative writs on February 22, 2006. Following a conference on February 7, 2007, the matter was remanded to the Board on February 21, 2007, to consider whether Walsh's application should be granted variances based upon the criteria set forth in N.J.S.A. 40:55D-70c(2). On April 26, 2007, Walsh presented additional testimony from his engineer, John Ernst. Ernst testified that the proposed house will be better positioned on the lot with the footprint parallel to the lot lines, side-yard setbacks of two and one-half feet rather than three-tenths of a foot, and the front setback twenty-five rather than thirteen feet. He opined that the benefits outweighed the detriments and that the proposed house would provide better visibility, safety, and clearance for traffic on the street.

Plaintiffs called their own planner, Richard Lapinski, to testify before the Board on remand. He opined that the new structure was not in keeping with the general character of the neighborhood and that the improvements were insubstantial. He further opined that there was no benefit to changing the current footprint of the home. Plaintiffs also called an appraiser, Robert Kirwan, who opined that the subject lot was worth $205,000 with a variance. Peter Devine, who lives next door at 1212 Riviera Drive, testified and offered to purchase the lot at that value in order to alleviate the hardship in accordance with long-extant case law covering nonconforming vacant lots. The Board then adjourned the hearing to conduct a site inspection.

The Board reconvened on May 10, 2007, and various Board mem bers commented upon their inspections: Robert Alston com mented that the existing building is right up to the property lines and the proposed new footprint would constitute a signifi cant improvement in the neighborhood, which already had a number of three-story homes. Nels Luthman concurred with Alston's observations and commented that "there are other three stories that are starting, that are already in the neighborhood and so I don't see it totally being inconsistent." Linda Stefanik, the chairwoman, commented that homes in the area are either brand-new construction as the result of tearing down existing homes or renovations "and they are all quite large for the size of the lots." She observed that the majority of lots are undersized, which is a hardship for Walsh, and Walsh could have renovated his home and probably would not have been restricted from increasing the size by building up. She concluded that what Walsh was proposing to do was common for the area and the new footprint would be an improvement.

The Board deliberated and concluded unanimously that the lot was not vacant and, thus, Walsh was not required under existing case law to offer the lot for sale to adjoining prop erty owners in order to alleviate the hardship. The Board con cluded that c(1) and (2) conditions existed and that moving the house back, increasing the side yard setbacks, and building above the flood plain would improve the general nature of the neighborhood. The Board unanimously decided that the applica tion met the criteria for c(1) and (2) variances and approved Walsh's application.

The Board adopted a resolution on May 24, 2007, ratifying its prior decision. It found that the grant of a c(2) variance was consistent with the MLUL as construed by Kaufmann v. Planning Board for Warren, 110 N.J. 551 (1988), and Bressman v. Gash, 131 N.J. 517 (1993). The Board again found that "the relief requested can be granted without substantial detriment to the public good and without being inconsistent with the intent and purpose of the Township's Master Plan and Zoning Ordinance." The Board further concluded that strict application of the MLUL and the Township Zoning Ordinance to the lot in question would result in exceptional difficulties or hardship on Walsh. The Board again found that the variances were necessitated by the extreme narrowness of the lot, justifying the c(1) variances, and made the following findings of fact respecting c(2) variances:

2. The Board finds that the construc tion of a new home on the property will have benefits, which substantially out weigh [sic] any detrimental affect which might be perceived by the construction of a new home. The construction of the new home will be further from the sidelines than the existing home and 5 feet from the road. The removal of the house from the roadway enhances the visual appearance, the environment and sig nificantly improves the safety along the road.

3. The construction of the new house, which will be in compliance with the flood elevation laws, is of significant concern to the Board since the area is located with[in] several hundred feet of the Toms River. This enhancement is of great value to the municipality in reducing the municipality's concerns about flooding along the Toms River.

4. The Board took into consideration the testimony of the objectors['] real estate expert in which he testified that the construction of a large building next to and adjacent to a single family dwelling did not effect [sic] the appraised value or have any negative impact on the value of the homes in the area. . . . In addition, no variances are being sought for the height of the building.

5. The applicant testified, and the Board finds as a matter of law according to Township Ordinances, that if this applica tion is not approved, the existing house will remain exactly where it is located and it can be rebuilt and the Applicant can seek permits to put on additions to the upper levels without the need for this variance as long as the footprint is not expanded. This is not, in the Board's view, a desired result. The applicant testified, and under the Toms River Ordinances, the applicant would have the opportunity to enlarge the house given the nature of the Toms River Ordinances. Regardless of whether or not the applicant were to enlarge the house, the house, as it currently exists and is pro posed to be renovated if the application were not approved, is not a desired result. If the applicant were merely to renovate this house in its as is, where is condition, the structure would still remain too close to the side yards and too close to the street.

6. Therefore, the Board takes the posi tion that moving the house further from the street and the side yards, regardless of any future expansion of the house, is of significant benefit not only to the neighborhood, but also to the zone and mas ter plans. The Board finds that there is neither significant negative impact nor det riment as a result of the approval of this application. The benefits far out-weigh [sic] whatever might be perceived to be a negative impact. The Board finds that the construction of a new home in keeping with the type of construction in the entire neighborhood, is of significant benefit of and by itself. The added benefit will accrue to the neighborhood as a result of the relocation of the structure.

7. All of the above satisfy the requirements of the C-2 variance as set forth by [the Board's attorney] and as such, the Board hereby approves this application as presented.

II.

On June 8, 2007, the parties contacted the court and requested that the action in lieu of prerogative writs be reopened. On November 9, 2007, the parties appeared and argued the case. The judge then recited the facts described above and placed his decision on the record. Thereafter, he reduced his decision to writing on November 13, 2007. The judge again recited the facts and proceedings before the Board in detail and discussed the scope of judicial review of the Board's determina tion. He reviewed the criteria for the grant of a c(1) hardship variance. He construed the obligation to buy or sell under Dallmeyer v. Lacey Township Board of Adjustment, 219 N.J. Super. 134, 140 (Law Div. 1987), as applying only in vacant nonconform ing lot cases. The judge concluded that the Board properly determined that Walsh was not required to offer to sell his property to adjoining property owners because his lot had an existing dwelling on it. The judge then found that the Board had sufficient credible evidence on which to base a grant of c(1) and c(2) variances to Walsh:

With respect to the (c)(1) variance relief, the Board could reasonably conclude that the subject property was exceptionally narrow at twenty-five [feet] in width where fifty feet is required, resulting in an exceptional difficulty or hardship on the applicant. With a basis to determine that the positive criteria had been satisfied, there was also sufficient evidence before the Board that the grant of the variance would not result in substantial detriment to the public good or zoning plan.

After describing that evidence, the judge then reviewed the cri teria for the c(2) variances and the evidence adduced at the remand hearing from the experts for Walsh and plaintiffs. He found as follows:

The court finds that the Board had the discretion to weigh the testimony of these experts and give it such weight as it deemed appropriate. In this case, the Board deferred decision following the testimony of the experts in order to afford them an opportunity to conduct a site inspection. Following the site inspection, Board members generally expressed the view that the pro posed structure was not incompatible with the neighborhood scheme.

The record discloses that the Board care fully weighed the evidence, followed the instructions of law provided by counsel, and had a sufficient record upon which to base its findings that the application promoted zoning purposes which included safety, air and open space. Moreover, the record sup ports the Board's factual and legal findings including its finding that the benefits were not outweighed by any detriment.

The judge concluded, "The Board's actions in this case could not be found to be arbitrary, capricious or unreasonable and its grant of (c)(1) and (c)(2) variances for the reasons expressed is upheld." A judgment consistent with the judge's opinion was entered on November 27, 2007. This appeal followed.

Plaintiffs contend that the judge erred as a matter of law in holding that Walsh was not obligated to offer to sell his property to Devine and that the proofs were insufficient to sup port c(1) variances. They also argue that the judge erred in upholding the Board's grant of c(2) variances because Walsh's expert did not make reference to the provisions of the MLUL that would be advanced by the proposed demolition and construction, whereas plaintiffs' expert testified that the proposed house would not be in keeping with the neighborhood.

III.

The scope of our review of a determination by a municipal zoning board is limited. The legislative policy embodied in the MLUL favors land use planning by ordinance rather than by vari ance, with the use variance being the exception rather than the rule. See Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 155-56 (1992) (explaining the "basic law governing land use vari ances codified in N.J.S.A. 40:55D-70d, amended by L. 1991, c. 256"). Zoning boards are independent quasi-judicial administra tive bodies. Dolan v. DeCapua, 16 N.J. 599, 612 (1954). Their powers are authorized by statute. Duffcon Concrete Prods., Inc. v. Borough of Cresskill, 1 N.J. 509, 515-16 (1949). There is an assumption that an adequate basis exists in the record for a zoning board's determination, so generally deference is appro priate. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999). Since variances tend to impair sound zon ing, courts ordinarily give greater deference to the denial of a use variance than to a grant. Medical Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001); Omnipoint Commc'n, Inc. v. Bd. of Adjustment of Bedminster, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001); Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999).

Municipal zoning boards are given wide latitude in their delegated discretion due to their particular knowledge of local conditions and we review their decisions to determine whether they are arbitrary, capricious, or a manifest abuse of the board's discretionary authority. Jock v. Zoning Bd. of Adjust ment of Wall, 184 N.J. 562, 597 (2005). The reviewing court must determine whether the board could reasonably have reached its decision on the record before it. Ibid. We are not permit ted to substitute our judgment for that of the board. See Kauf mann, supra, 110 N.J. at 558 ("We do not sit in judgment on whether the [zoning change] is wise or unwise." (internal quota tions and citation omitted)). We are not to "suggest a decision that may be better than the one made by the board of adjustment . . . ." Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987). However, we are not bound by an agency's determination of a question of law, which we decide de novo. Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993); Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001); Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75-76, n.5 (App. Div. 1987); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference."). This is so because a zon ing board has "no peculiar skill superior to the courts" regard ing purely legal matters. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957); Grancagnola, supra, 221 N.J. Super. at 75-76.

IV.

The pivotal concern in this appeal is whether Walsh should have been required to cure the hardship of an undersized lot by selling his lot to Devine to cure the nonconformity. The law governing variances in undersized lot cases has been thoroughly developed. See, e.g., Nash v. Bd. of Adjustment of Morris, 96 N.J. 97 (1984); Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597 (1980); Chirichello v. Zoning Bd. of Adjustment of Mon mouth Beach, 78 N.J. 544 (1979); Gougeon v. Bd. of Adjustment of Stone Harbor, 54 N.J. 138 (1969) (Gougeon II); Gougeon v. Bd. of Adjustment of Stone Harbor, 52 N.J. 212 (1968) (Gougeon I); Har rington Glen, Inc. v. Mun. Bd. of Adjustment of Leonia, 52 N.J. 22, 30-31 (1968); Dallmeyer, supra, 219 N.J. Super. 134. Each of these cases involved a vacant residential nonconforming lot.

In an undersized lot case, once an applicant has satisfied the positive and negative criteria under N.J.S.A. 40:55D-70, the applicant is entitled to a variance. Nash, supra, 96 N.J. at 102. The purpose of a conditional variance "is to enable the adjoining property owner to avoid the variance to which the property is entitled." Id. at 106. However, the willingness of an adjoining property to purchase is not necessarily control ling; the imposition of a condition is committed to the discre tion of the zoning board. Gougeon I, supra, 52 N.J. at 224 ("If the negative criteria are met, [the applicant] may in the discre tion of the Board be denied the permission to build his house on condition that a binding offer as described above is made and is available for prompt payment to him."); Gougeon II, supra, 54 N.J. at 149 ("[I]t was not intended that existence of [a fair-market-value] offer, of itself, would warrant denial of relief[; i]t was intended that such an offer would constitute a circumstance to be considered in the application of the Board's statutory discretion to the whole case."); see also Davis, supra, 105 N.J. at 482 ("In its discretion, a board may recog nize an offer to purchase property at fair market value by imposing on the grant of a variance a condition subsequent for the benefit of an adjoining owner.").

Here, in upholding the Board's determination, the judge relied on Davis, supra, 105 N.J. at 483, and on a footnote in Dallmeyer, supra, 219 N.J. Super. at 140 n.1, both of which con fined the undersized lot cases to vacant land. In Davis, cited by Dallmeyer in the referenced footnote, the Karpfs were con tract purchasers of residential property, including an existing house and garage, which had been owned by the sellers since 1939. Davis, supra, 105 N.J. at 478. The subject property, located in a highway business zone, was bordered on two sides by property owned by Davis. Id. at 479. The Karpfs wished to use the property as a small real estate and law office, a permitted use, but the lot was undersized and the location of the house contravened various setback and other requirements. Ibid. The Board granted the requested variances over the opposition of Davis, but the Law Division concluded that the variances should have been conditional on an offer to sell to Davis. Id. at 480. We affirmed. Id. at 481. The Supreme Court in turn reversed. Id. at 478.

The Court noted that it had never intended the existence of an offer to purchase an undersized lot, by itself, to warrant denial of relief, but had rather "'intended that such an offer would constitute a circumstance to be considered in the applica tion of the Board's statutory discretion to the whole case.'" Id. at 483 (citing Gougeon I, supra, 52 N.J. at 224; and quoting Gougeon II, supra, 54 N.J. at 148-49). The Court then held:

A conditional variance is strong medi cine. It subordinates an owner's ability to use his or her property to another's desire to purchase it. See Nash v. [Bd.] of Adjust ment of Morris, supra, 96 N.J. at 109. Accordingly, we have limited our recognition of conditional variances to vacant residen tial land that requires a variance before the property is useable. See, e.g., id. at 103-05 (an isolated, undersized, vacant lot in a single-family detached residential zone); Chirichello v. Zoning Bd. of Adjust ment of Monmouth Beach, supra, 78 N.J. at 548-50 (a vacant lot in a residential zone); Gougeon I, supra, 52 N.J. at 216-18 (an undeveloped lot in a residential zone). In those cases, the only alternative to grant ing an unconditional variance would have been zoning the property into inutility, a result that would be tantamount to taking the property. See Commons v. Westwood Zoning Bd. of Adjustment, supra, 81 N.J. at 607; Harrington Glen, Inc. v. [Mun.] Bd. of Adjustment [of Leonia], supra, 52 N.J. at 33. The conditional variances in those cases would not have deprived the owners of the right to continue to use previously developed properties. To date, we have not recognized a conditional variance when the property is a developed commercial lot. Fur thermore, we have never required the owner of a developed lot to sell that property to an adjoining owner when the owner seeks only to construct an addition to an existing dwelling. Requiring a homeowner to sell to an adjoining owner as a condition of the grant of a hardship variance would generally seem to be unwarranted. Assuming, more over, that the existing house were to remain in place, forcing the owner to sell to a neighbor who intended to retain the house would not serve any apparent land use purpose.

Arguably, it could be better land use regulation to eliminate developed pre-exist ing sub-standard lots, such as the property in question, that do not conform to current zoning requirements. The proper scope of judicial review, however, is not to suggest a decision that may be better than the one made by the board of adjustment or planning board, but to determine whether the board could reasonably have reached its decision. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965); Kessler v. Bowker, 174 N.J. Super. 478, 485 (App. Div. 1979), cer tif. denied, 85 N.J. 99 (1980). Such a decision is presumed valid and should not be set aside unless it is arbitrary, capri cious, or unreasonable. Kessler v. Bowker, supra, 174 N.J. Super. at 486; accord Kramer v. [Bd.] of Adjustment, Sea Girt, supra, 45 N.J. at 285.

[Davis, supra, 105 N.J. at 484-85 (emphasis added).]

Plaintiffs argue that Davis is not determinative because it involved commercial property, which has never been subject to a conditional variance, and the applicant was not seeking to demolish the existing structure, as here. They urge that where the existing structure is to be demolished, the property owner holds only vacant land and his "right to continue to use the property in a manner inconsistent with existing zoning regula tions" terminates, relying on Krul v. Board of Adjustment of Bayonne, 122 N.J. Super. 18 (Law Div. 1972), aff'd o.b., 126 N.J. Super. 150 (App. Div. 1973), and Industrial Lessors, Inc. v. City of Garfield, 119 N.J. Super. 181 (App. Div.), certif. denied, 61 N.J. 160 (1972). Neither case required the Board to grant conditional variances.

In Krul, one of several buildings employed in a preexisting nonconforming use was totally destroyed by fire and the property owner should to reconstruct the building. Krul, supra, 122 N.J. Super. at 21. At the time, N.J.S.A. 40:55-48 provided: "Any nonconforming use or structure existing at the time of the pas sage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof." The Krul court observed,

If, however, a structure is destroyed totally rather than partially, the property owner in effect holds only vacant land and should be controlled by the existing zoning restrictions in the same manner as other owners of undeveloped land. Under such cir cumstances the dilemma of the property owner the loss of his investment is one cre ated by the unfortunate casualty and not by virtue of the power of government.

[Krul, supra, 122 N.J. Super. at 25.]

Yet, the court concluded that the latter rule should not apply where only one of several buildings was destroyed, reasoning:

Where the destroyed building is so inte grated with the total building complex, is it fair or realistic to consider that destruction as total rather than par tial within the legislative intent? Mani festly, as far as the property owner and the conduct of his business is concerned, the functional use of the property and its structures has been only partially destroyed by fire; and the ban on reconstruction will result in the practical impairment of his investment in the total business venture not because of the fire but because of the power of government.

[Id. at 26.]

As a result, the court construed the statute to "encompass the destruction of a part of an integrated whole of a business enterprise in the same manner as the destruction of a part of an individual structure." Id. at 27-28.

Other cases have recognized that the total destruction of a nonconforming use or structure precludes rebuilding. See, e.g., Indus. Lessors, supra, 119 N.J. Super. at 183 ("total destruc tion of a nonconforming building terminates the right to con tinue the use"); D'Agostino v. Jaguar Realty Co., 22 N.J. Super. 74, 77-78 (Ch. Div. 1952) ("The Spirit of the Zoning Act has been to restrict rather than to increase non-conforming uses and authority to vary the application of the general regulation should be sparingly exercised."). However, we have concluded that the general principle did not apply where the nonconforming use had been authorized by variance. Industrial Lessors, supra, 119 N.J. Super. at 183.

Clearly, the protections afforded by N.J.S.A. 40:55D-68 were triggered by the fire which damaged Walsh's home. The destruction was not complete; only the interior of the home was gutted, as the photographs in evidence vividly demonstrate. Walsh has a statutory right to reconstruct the home with its present footprint, yet wishes to ameliorate the extent of the existing nonconformities and expand the size of his house. No demolition has yet occurred and, as a result, the lot is not now vacant, nor was it at the time the Board adopted the resolutions authorizing the c(1) and c(2) variances. Because the lot was not then vacant, the Board was not required to consider granting the variances conditioned upon an offer to sell the land to adjoining property owners, which in any event, as we have previ ously noted, would have been committed to its sound statutory discretion. See Gougeon I, supra, 52 N.J. at 224-25 ("plaintiff may in the discretion of the Board be denied the permission to build his house on condition that a binding offer . . . is made and is available for prompt payment to him"); see also Gougeon II, supra, 54 N.J. at 148-49 (existence of binding offer to buy subject property constitutes "a circumstance to be considered in the application of the Board's statutory discretion to the whole case"). The authorized future demolition of the partially dam aged home in order to permit amelioration of the structural non conformities while expanding its size and to bring the home into greater conformity with the municipal ordinance and zone plan did not convert the application before the Board into a vacant undersized-lot case so as to impair Walsh's right of residency "not because of the fire but because of the power of govern ment." Krul, supra, 122 N.J. Super. at 26. We find no error in the judge's affirmation of the Board's conclusion that the lot was not vacant, obviating the need to consider Devine's purchase offer. We thus affirm the conclusion that Walsh has proven exceptional and undue hardship pursuant to N.J.S.A. 40:55D-70c(1).

V.

Plaintiffs also assert that the Law Division erred in affirm ing the Board's conclusion that Walsh satisfied the nega tive criteria for c(1) and c(2) variances. The negative criteria for both types of variances are the same:

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 substan tial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

[N.J.S.A. 40:55D-70.]

Unlike a c(1) variance where the positive criteria require a showing a exceptional and undue hardship, the positive crite ria for a c(2) variance permit a board of adjustment to grant a variance "where in an application or appeal relating to a spe cific 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." N.J.S.A. 40:55D-70c(2). The Supreme Court has explained this requirement as follows:

By definition, then, 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 alter native for the property. The focus of a c(2) case, then, will be not on the charac teristics of the land that, in light of current zoning requirements, create a "hard ship" 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, supra, 110 N.J. at 563.]

Plaintiffs argue that the new house will encroach on the front and side setbacks and be constructed on an undersized lot. They assert that Walsh's expert failed to identify the parts of the MLUL that would be advanced by the proposed demolition and new construction and failed to explain how it served the pur poses of zoning, although he admitted that the size of the new house did serve the purposes of Walsh. They then rely on the testimony of their own expert to establish that the proposed demolition and construction would be a detriment to the public good and the zone plan and otherwise disputes the Board's fact findings.

We are not persuaded by these arguments. The variances granted to Walsh do not merely advance the purposes of Walsh, although they do serve them. The Board found that the proposed new construction will enhance the visual appearance of the street and environment and significantly improve the safety along the road. It will elevate the house above the flood plain, an enhancement of great value to the municipality in reducing it's concerns about flooding along the Toms River. The size of the new construction will have no negative impact on the value of the homes in the area and no height variance was required. Repair of the home in its current footprint would continue the hazard it presents to people and traffic on the street. Relocation of the house will be of significant benefit not only to the neighborhood, but also to the zone and master plans with the benefits far outweighing any negative impact. Furthermore, the new home will be in keeping with the type of construction in the entire neighborhood, which the Board found to be of significant benefit in and of itself.

The record before the Board contains substantial evidence to support the Board's findings and conclusions with respect to the negative and positive criteria for both c(1) and c(2) vari ances. The variances granted were not arbitrary, capricious or unreasonable.

Affirmed.

Each of the plaintiffs owns property within 200 feet of the property owned by Walsh.

The Township of Dover is now Toms River Township.

This statute was reenacted as N.J.S.A. 40:55D-68 without revision.

(continued)

(continued)

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April 22, 2009