MATTHEW O'BRIEN v. BOROUGH OF POINT PLEASANT ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0361-09T30361-09T3

MATTHEW O'BRIEN and

CATHERINE O'BRIEN,

Plaintiffs-Appellants,

v.

BOROUGH OF POINT PLEASANT

ZONING BOARD OF ADJUSTMENT,

JAMES ROLLANO and EDWARD

REILLY,

Defendants-Respondents.

________________________________________________________

 

Argued April 20, 2010 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County, Docket No. L-364-09PW.

Edward F. Liston Jr. argued the cause for appellants.

John J. Jackson III argued the cause for respondent Borough of Point Pleasant Zoning Board of Adjustment (King, Kitrick & Jackson, attorneys; Michael V. Elward, on the brief).

Steven A. Pardes argued the cause for respondents James Rollano and Edward Reilly.

PER CURIAM

This is an appeal from a final judgment of the Law Division, which affirmed a resolution of defendant Borough of Point Pleasant Zoning Board of Adjustment (Board) granting an application by defendants James Rollano and Edward Reilly (hereinafter sometimes referred to as the applicants) for a minor subdivision approval and associated use and bulk variances.

The property for which the approval was granted is a 35,291 square foot lot. The lot is "T"-shaped, with an approximately seventy-foot wide vertical stem fronting on Burnt Tavern Road. The main part of the lot at the top of the T is approximately 230 feet wide. The vertical stem consists of 7,996 square feet, and the remaining 27,295 square feet are located in the main part of the lot.

There are currently two duplex housing units and a parking area in the main part of the lot and a driveway from the parking area to Burnt Tavern Road on the vertical stem. This residential development was constructed in the 1970s in accordance with an approval granted by the Board in 1972. At that time, duplexes were an approved use in the zoning district. Therefore, no use variance was required. However, certain bulk variances were required.

Duplexes are no longer a permitted use in the zoning district. Consequently, the two duplexes located on the lot are a nonconforming use.

The applicants proposed to subdivide the lot into two lots, one consisting of the main part in which the two duplexes are located and the other consisting of the vertical stem. Under this proposal, the applicants would continue operation of the main part of the lot as a rental property with the two duplexes remaining in their current locations. The applicants proposed to develop the vertical stem by construction of a new single family house and a new, wider driveway that would provide access to both the new house and the duplexes.

A use variance was required for this proposed development because under our decision in Razberry's, Inc. v. Kingwood Township Planning Board, 250 N.J. Super. 324, 326 (App. Div. 1991), "a use variance is required to continue a nonconforming use when the size of the property containing the use is reduced by a subdivision[,]" and the subdivision of the single lot on which the nonconforming duplexes are located into two lots would result in a reduction of the size of the lot containing the duplexes. The development proposal also required a number of bulk variances for both the existing duplexes and the proposed new single family house.

The Board conducted a one-day hearing on this development proposal. Rollano testified that he and Reilly proposed to make certain improvements in the siding and gutters on the duplexes, which are currently in a deteriorated condition. He also said that they were in the process of making various renovations in the interiors of the duplexes, including new heating and air conditioning systems. Rollano did not indicate that the completion of these improvements and renovations is contingent upon approval of the proposed subdivision and construction of the new single family house.

Robert Burdick, a professional engineer retained by the applicants in connection with the development proposal, testified that the development would result in "an updated, more attractive site" and that "an increase in safety for the four duplex units will be provided by the increased driveway width."

Plaintiff Matthew O'Brien, who lives next door to the vertical stem of the lot, testified that construction of the proposed new residence and expanded driveway would require the removal of two 250-foot oak trees.

In approving the application for the minor subdivision and associated use and bulk variances, the Board found that "failure to grant the relief requested [would] result in undue hardship to the applicants[.]" The Board also found that the proposed development would "contribute to the desirable visual environment and promote aesthetics as the structures are to be maintained and updated." The Board conditioned its approval upon Rollano and Reilly installing new gutters and siding on the duplexes and paving a new parking lot for use by the occupants of the duplexes.

Plaintiffs brought this action in lieu of prerogative writs challenging the Board's approval of the development application. After briefing and oral argument, the trial court issued a lengthy written opinion upholding the Board's approval. In concluding that the record supported the Board's finding that the positive criteria for the grant of a use variance for the nonconforming duplexes had been established, the court stated:

[T]he existing driveway would be expanded to 18 feet which addresses the general welfare and access by emergency vehicles to the existing nonconforming duplex. A fair reading of the record reveals that the Board was particularly interested in the proposed improvements to the existing duplex. The Board had evidence that the applicants proposed to replace the siding with vinyl cedar impressions, install new gutters and fences, as well as remove three sheds which did not meet the two foot setback requirement for the zone.

On appeal, plaintiffs argue that: (1) the Board erred in including the proposed eighteen-foot wide driveway access easement in its calculation of the area of the new lot on which the proposed single-family residence would be constructed;

(2) the area of the proposed new rear lot on which the duplexes are located does not satisfy the minimum area requirements in the zoning district; (3) the record does not support the Board's finding that the applicants satisfied the criteria for the bulk variances required for creation of the new lot on which the single-family residence is to be constructed; and (4) the Board erred in finding that the applicants had established the positive and negative criteria required for the grant of a use variance for the nonconforming duplexes.

We conclude that the judgment upholding the approval of Rollano's and Reilly's land use application must be reversed because the Board erred in finding that they had established the positive criteria for a use variance for the duplexes. This conclusion makes it unnecessary to address plaintiffs' other arguments.

Initially, we reject the Board's argument that no use variance was required for approval of the application. In support of this argument, the Board relies upon Puleio v. North Brunswick Township Board of Adjustment, 375 N.J. Super. 613 (App. Div.), certif. denied, 184 N.J. 212 (2005), which held that an application for subdivision approval for a property for which a use variance had been granted previously did not require a new use variance. The record indicates that the duplexes were not authorized by a prior use variance, but rather were a permitted use at the time of their construction. Under Ordinance 346 of the Borough of Point Pleasant adopted on April 2, 1968, duplexes were a permitted use in the R-2 zone where the subject property is located. Moreover, the 1972 resolution of the Board of Adjustment authorizing the construction of the duplexes expressly stated that "[d]uplex dwellings are permitted as of right in the zone on lots of 15,000 square feet." Although this resolution also refers to a variance, it is clear that variance was not a use variance authorizing the construction of the duplexes, but was instead required to address some other nonconformity in the development plans, such as the lack of sufficient frontage on Burnt Tavern Road.

Therefore, the applicants' land use application was not governed by Puleio but rather by Razberry's, which, as previously noted, holds that "a use variance is required to continue a nonconforming use when the size of the property containing the use is reduced by a subdivision." 250 N.J. Super. at 326.

Razberry's contains the following explanation of the reasons why a use variance is required when a property owner seeks to subdivide a lot on which a nonconforming use is located:

N.J.S.A. 40:55D-68 provides in pertinent part that "[a]ny nonconforming use

. . . existing at the time of the passage of an ordinance may be continued upon the lot

. . . so occupied" (emphasis added). A subdivision results in the creation of two or more new lots which take the place of the larger lot out of which they are formed. Therefore, when a lot occupied by a nonconforming use is subdivided, a prerequisite of the lawful continuation of the use, its operation upon the same lot, no longer can be satisfied, and the property owner is required by N.J.S.A. 40:55D-70d(2) to obtain a use variance for "an expansion of a nonconforming use."

This interpretation of N.J.S.A. 40:55D-68 is supported by the underlying legislative policy regarding nonconforming uses, which is that "they should be reduced to conformity as quickly as is compatible with justice." "The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity."

[250 N.J. Super. at 326-27 (citations omitted).]

This rationale is fully applicable to the proposed subdivision of the subject property, which would result in a substantial reduction in the size of the less than one acre lot on which the two nonconforming duplexes are located.

A board of adjustment may grant a use variance for expansion of a nonconforming use under N.J.S.A. 40:55D-70(d)(2) only if it finds: (1) that "special reasons" exist for the variance (the positive criteria), and (2) that the variance "can be granted without substantial detriment to public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance" (the negative criteria). In determining whether these requirements have been established, a board of adjustment takes a more liberal approach in reviewing an application for an expansion of a nonconforming use than one seeking authorization for establishment of a new nonconforming use. See Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 384-93 (1990).

The Board apparently relied upon "hardship" as the basis for concluding that the applicants had established the positive criteria for the grant of a use variance, finding that the "failure to grant the relief requested [would] result in undue hardship[.]" This finding is not supported by the record. The applicants' less than one acre lot is already occupied by two duplexes from which the applicants derive rental income. This clearly constitutes an economically productive use of the lot. Moreover, at the hearing before the Board, the applicants specifically disclaimed any reliance upon hardship as a basis for the grant of their use variance application, and they have not attempted to defend this finding of hardship in their appellate brief.

Instead, the applicants argue that the positive criteria of special reasons is established by evidence that their development proposal would promote a desirable visual environment by means of improvements and renovations to the duplexes and would promote public safety by construction of the proposed new driveway that would provide easier access to the duplexes by emergency vehicles. This also seems to be the basis upon which the trial court concluded that the applicants had established the positive criteria for the grant of a use variance.

The Board's only findings relevant to these alleged benefits were that the development would "contribute to the desirable visual environment and promote aesthetics as the structures are to be maintained and updated[,]" and that the development would "modernize and provide safer access to the two duplexes." However, these findings were made in connection with the applicants' satisfaction of the negative criteria for the grant of a use variance -- that the proposed use "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," N.J.S.A. 40:55D-70(d) -- rather than the positive criteria of special reasons. In any event, these findings do not provide a sufficient foundation for a finding of special reasons under the circumstances of this case.

We recognize that in some circumstances "aesthetic improvement alone can be a sufficient special reason to justify a variance to expand a pre-existing nonconforming use." Burbridge, supra, 117 N.J. at 387. "[H]owever, 'aesthetic improvement' entails more than mere beautification. In this context, the phrase refers to the overall visual compatibility of the use; it is inextricably entwined with notions of the general welfare." Id. at 387-88. "In essence, the Court has defined a relatively narrow area in which aesthetic considerations can provide the special reasons needed to support a d variance." William M. Cox et al., New Jersey Zoning and Land Use Administration 11-6.1 at 320 (2010).

There is no basis upon which the elimination of the trees and other vegetation currently located in the vertical stem of the subject property and their replacement with a single family residence could be found to reduce the "visual incompatibility" of the duplexes with the surrounding residences. To the contrary, the proposed new residence would, if anything, have a negative impact upon the aesthetics of the immediate neighborhood. Consequently, the applicants do not argue that construction of the single family residence would result in an aesthetic benefit.

Instead, they suggest, without directly asserting, that the anticipated proceeds from the sale of that residence would provide the funds required to make necessary renovations to the duplexes, particularly replacement of the sidings of those structures, which were in a deteriorated condition at the time of the hearing. However, the record does not support a finding of such a connection between the proposed construction of a single family residence on the vertical stem and renovations to the duplexes. To the contrary, Rollano seemed to indicate such renovations were already underway. Moreover, if the duplexes are truly in a deteriorated condition, as several witnesses testified, the applicants could be compelled to make the required repairs and renovations by means of a code enforcement action. Furthermore, even if the applicants were unwilling to make the renovations required to improve the duplexes' appearance without the funds that would be generated by the sale of the proposed single family residence, this would constitute too attenuated a relationship between the proposed expansion of the nonconforming use and aesthetic improvement of the property to satisfy the requirement of special reasons under Burbridge.

Similarly, the easier access to the duplexes by emergency vehicles that would be provided by a wider driveway is not the kind of safety improvement that could justify a finding of special reasons. There is no evidence that the current driveway, which was presumably included in the land use plan approved by the Board in 1972, is unsafe. The proposal to increase the width of the driveway was made solely in connection with the proposed subdivision of the lot to enable the construction of a single family house. The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, provides that "[n]o permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure." N.J.S.A. 40:55D-35. See generally, Cox, supra, 9-2. The subject lot complied with this provision when the Board approved the plan for construction of the duplexes because that approval involved a single lot with access to Burnt Tavern Road. However, the proposed subdivision would result in the creation of two lots, and the rear lot would no longer abut a street. Therefore, the fire marshall's request that a new eighteen-foot driveway be constructed to provide access to both the duplexes and the proposed new single family house was undoubtedly designed to address this new nonconformity. As the need to expand the driveway only arises if the subdivision application is approved, the policy behind N.J.S.A. 40:55D-35, of assuring access by emergency vehicles to a building or structure, cannot itself provide the justification for approval.

Accordingly, the judgment of the trial court affirming the Board's approval of the applicant's land use application is reversed.

 

This prohibition is subject to an exception where the enforcement of N.J.S.A. 40:55D-35 would entail "practical difficulty," or "unnecessary hardship" or where street access is unnecessary. N.J.S.A. 40:55D-36.

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A-0361-09T3

August 6, 2010