CHRISTOPHER JOHN ZEMAN v. TOWNSHIP OF RIVER VALE ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2163-08T32163-08T3

CHRISTOPHER JOHN ZEMAN,

Plaintiff-Appellant,

v.

TOWNSHIP OF RIVER VALE

ZONING BOARD OF ADJUSTMENT,

and PARKLANE CONSTRUCTION,

L.L.C.,

Defendants-Respondents.

_______________________________________

 

Argued February 22, 2010 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4146-07.

Christopher John Zeman, appellant, argued the cause pro se.

Brian T. Giblin argued the cause for respondent Township of River Vale Zoning Board of Adjustment (Law Offices of Giblin & Giblin, attorneys, join in the brief of respondent Parklane Construction, L.L.C.).

Nancy E. Saccente argued the cause for respondent Parklane Construction, L.L.C.

PER CURIAM

Plaintiff Christopher John Zeman appeals from an order entered by the Law Division on November 12, 2008, affirming the grant by defendant Township of River Vale Zoning Board of Adjustment (Board) of an application by defendant Parklane Construction, L.L.C. (Parklane) for certain variances. We affirm.

The following facts are pertinent to our decision. Parklane is the owner of certain premises on Cleveland Avenue in the Township. Plaintiff owns property to the rear of the Parklane property. In February 2007, Parklane applied to the Board for several variances required for the construction of a new single-family house on its property. The variances were for east and west side-yard setbacks (10.1 feet, where 15 feet is required), aggregate side-yard setback (20.2 feet, where 40 feet in required), lot area (11,570 square feet where 18,000 feet is required), and lot width (75 feet where 120 feet is required). The new structure would replace an existing single-family residence on the site that had fallen into disrepair.

The Board considered the matter at a meeting on March 15, 2007. Parklane presented testimony from Gary Vander Veer (Vander Veer), a licensed engineer, and Kurt Seickel (Seickel), who is one of Parklane's members. Vander Veer said that the proposed dwelling would be a four-bedroom house with three bathrooms. He also said that the square footage of the property is similar to that in other lots in the neighborhood. In his testimony, Seickel described the proposed structure as being of a "farmhouse style." As a result of concerns raised at the hearing, Parklane submitted revised plans to the Board.

The Board considered the revised application at its meeting on April 19, 2007. Vander Veer testified that the individual side-yard setbacks would no longer be required because the modified structure would have fifteen-foot side-yard setbacks. Vander Veer noted, however, that the combined thirty-yard setbacks were less than the forty feet required by the zoning ordinance. Seickel testified that the modified structure would be higher than initially planned but still within the height requirements of the zoning ordinance.

Members of the public were permitted to comment on Parklane's application. Plaintiff asserted that the proposed structure was too large for the lot. He said that the neighborhood consisted primarily of houses he referred to as "capes," presumably meaning houses of a "Cape Cod" style. He stated that the proposed residence would change the character of the neighborhood. Another individual said that Parklane, rather than the neighbors, would benefit from the application. Another person asserted that the value of her house would decline. In response to a question by another individual, Seickel confirmed that the air conditioning system would be located in the rear of the house and shrubs would be planted as a buffer.

The Board voted to grant the requested variances. Thereafter, the Board memorialized its decision in a resolution dated May 17, 2007. In the resolution, the Board noted that the site was presently improved with a single-family residence that was "in very poor condition." The Board pointed out that the lot was non-conforming because it is 75 feet wide, where 120 feet is required, and the lot area is 11,570, where 18,000 square feet is required under the zoning ordinance.

The Board found that Parklane had demonstrated that the proposed structure "will result in a harmonious relationship between this property and others in the area." The Board stated that the variances would not have an "adverse impact and may be granted without substantial detriment to the public good[.]" The Board also concluded that the variances would not substantially impair "the intent and purpose of the zone plan and zoning ordinances."

In addition, the Board found that the proposed dwelling would "result in an overall aesthetic enhancement of the site" and would be consistent with the provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which encourage "the promotion of a desirable visual environment." The Board said that the testimony presented at the hearings established that the proposed structure would "not constitute an [over-utilization] of the lot" and the dwelling would be consistent with the purposes of the ordinance, which "is to maintain a prevailing family environment in its one family residential zone district."

On June 1, 2007, plaintiff filed this action in the Law Division seeking, among other relief, a judgment vacating the Board's approval of the variances. The trial court considered the matter on September 19, 2008. The court filed a letter opinion dated October 6, 2008, in which it concluded that the Board's decision was not arbitrary, capricious or unreasonable and that the Board's resolution explaining its action provided sufficient reasons for the decision. The court entered an order dated November 12, 2008, affirming the Board's decision. This appeal followed.

Plaintiff raises the following arguments for our consideration:

I THE BOARD'S GRANT OF THE BULK VARIANCES WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE BECAUSE PARKLANE FAILED TO ESTABLISH THE NECESSARY PROOFS TO SUPPORT A GRANT OF THE REQUESTED BULK VARIANCES UNDER [N.J.S.A.] 40:55D-70(c)(2)

A. PARKLANE DID NOT SUBMIT THE NECESSARY EVIDENCE FOR THE BOARD TO SATISFY THE NEGATIVE CRITERIA

B. BY FAILING TO SATISFY THE NEGATIVE CRITERIA, PARKLANE WAS UNABLE TO SHOW THAT THE BENEFITS OF THE PROPOSED DEVIATION FROM THE ZONING PLAN WOULD SUBSTANTIALLY OUTWEIGH THE DETRIMENTS

II THE BOARD LACKED EVIDENTIARY SUPPORT ON WHICH TO GRANT THE REQUESTED BULK VARIANCES AND FAILED TO MAKE A DETERMINATION IN ITS RESOLUTION BASED ON FACTUAL FINDINGS AND CONCLUSIONS OF LAW

A. THE RESOLUTION DOES NOT CONTAIN ADEQUATE FINDINGS OF FACT TO JUSTIFY THE CONCLUSIONS OF LAW SUPPORTING THE GRANT OF THE VARIANCES

B. THE RESOLUTION DOES NOT PROVIDE ADEQUATE EXPLANATION TO ALLOW A COURT TO REVIEW THE BOARD'S FINAL DECISION TO GRANT THE VARIANCES

C. THE CONCLUSIONS OF LAW FAIL TO JUSTIFY THE BOARD'S GRANT OF THE VARIANCES

III THE TRIAL COURT APPLIED THE WRONG LEGAL STANDARD FOR GRANTING A BULK VARIANCE UNDER [N.J.S.A.] 40:55D-70([c])(12) VARIANCE [SIC], INCORRECTLY FOUND A SINGLE-FAMILY RESIDENCE IS [AN] "INHERENTLY BENEFICIAL USE," AND IMPROPERLY AFFIRMED THE BOARD'S GRANT OF BULK VARIANCES BASED ON AN INSUFFICIENT EVIDENTIARY RECORD AND DEFICIENT RESOLUTION

A. THE TRIAL COURT ERRED BY FAILING TO APPLY THE CORRECT STANDARD OF REVIEW FOR A GRANT OF A BULK VARIANCE UNDER [N.J.S.A.] 40:55D-70([c])(2)

B. THE TRIAL COURT ERRED BY FINDING THE POSITIVE CRITERIA WAS SATISFIED BECAUSE THE PROPOSED USE WAS AN "INHERENTLY BENEFICIAL USE"

C. THE TRIAL COURT ERRED BY RELYING ON UNSUPPORTED AND INCORRECT ALLEGATIONS MADE BY PARKLANE REGARDING THE CHARACTERISTICS OF THE EXISTING NEIGHBORHOOD

D. THE TRIAL COURT ERRED BY FINDING THAT AN INADEQUATE RESOLUTION CAN BE SAVED BY TESTIMONY IN THE RECORD

The standard of review that applies in this case is well established. "A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). Even were we to entertain doubts as to the wisdom of a local zoning decision, "there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved." Id. at 296-97 (citing Ward v. Scott, 16 N.J. 16, 23 (1954)). We apply this same standard when reviewing a trial court's decision on an appeal from a decision of a local zoning board. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004).

Here, Parklane sought the variances pursuant to N.J.S.A. 40:55D-70(c)(2), which provides in pertinent part that a local zoning board of adjustment may grant a variance when the purposes of the MLUL "would be advanced by a deviation from the zoning ordinance requirements and the benefits of a deviation would substantially outweigh any detriment[.]" In Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009), we explained that an applicant for a c(2) variance must establish that: 1) the application relates to a specific parcel of property; 2) the deviation from the zoning requirements would advance the purposes of the MLUL; 3) the variance can be granted without substantial detriment to the public good; 4) the benefits from the variance outweigh any detriments therefrom; and 5) the variance will not substantially impair the intent and purpose of the zoning plan and ordinance. (citing William M. Cox, New Jersey Zoning and Land Use Administration, 6-3.3 at 143 (Gann 2008)).

We are satisfied that the trial court correctly determined that the Board did not act arbitrarily, capriciously or unreasonably in granting the variances sought by Parklane. As the Board pointed out in its resolution, the site is presently improved with a single-family residence that is in "very poor condition." The lot size is already non-conforming due to insufficient lot width of 75 feet, where 120 feet is required, and insufficient lot area of 11,570 square feet, where 18,000 square feet is required.

The record indicates that the neighborhood was previously in zone B and, as a result of a change in the zoning ordinance, placed in zone A. Consequently, most of the properties in the vicinity of the Parklane property have 75 foot frontages and all of the lots are approximately 75 by 150 feet in size.

As we stated previously, the Board found that the new house "will result in a harmonious relationship between [the] property and others in the area." The Board determined the variances may be granted "without substantially impairing the intent and purpose of the zone plan and zoning ordinances." In addition, the Board concluded that the variances will not result in over-utilization of the site. The Board further found that the variances will enhance the aesthetics of the area and, in doing so, further one of the purposes of the MLUL.

In our view, there is sufficient credible evidence in the record for the Board's findings. Those findings provide sufficient reasons for the grant of the variances pursuant to N.J.S.A. 40:55D-70(c)(2).

We have considered plaintiff's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

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A-2163-08T3

March 19, 2010