DONALD FEWER v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF COLTS NECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3056-08T13056-08T1

DONALD FEWER,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF COLTS NECK, A

Municipal Agency of the State of

New Jersey; and TOWNSHIP COMMITTEE

OF TOWNSHIP OF COLTS NECK,

Governing Body of the Township of

Colts Neck,

Defendants-Respondents.

_________________________________________________

 
Argued telephonically October 20, 2009 - Decided

Before Judges Cuff, Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-4388-06.

Craig M. Gianetti argued the cause for

appellant (Giordano, Halleran & Ciesla,

attorneys; John A. Giunco, of counsel;

Mr. Gianetti, on the brief).

Michael B. Steib argued the cause for

respondents.

PER CURIAM

Plaintiff, Donald Fewer, a resident of Colts Neck, enlarged a dilapidated, nonconforming, two-story accessory structure and transformed it into a building with two and one-half bathrooms, a recreation room, exercise room, game room, library and media room. Construction was completed without a building permit or necessary variances. Thereafter, plaintiff sought the required variances from the Colts Neck Zoning Board of Adjustment and was rejected. Plaintiff then brought an action in lieu of prerogative writs in the Law Division, challenging the Board's action as arbitrary and capricious and mounting a challenge to the governing zoning ordinance, 102-84.C(6). Upon rejection of his arguments by the trial judge, plaintiff filed the present appeal, raising the same issues that he raised in the underlying prerogative writs action. Additionally, plaintiff claims that the trial judge erred in barring testimony of his expert regarding the alleged incompatibility between the challenged ordinance and Colts Neck's Master Plan, which subject was not discussed in the expert's report.

I.

Plaintiff is the owner of a five and one-half acre piece of property located on Conover Road in Colts Neck. The property is situated in an A-1 Agricultural Residential Zone that requires a minimum lot size of 88,000 square feet. Although the lot could otherwise be subdivided, plaintiff has sited his 17,000-square foot residence in the middle of the property, precluding subdivision.

At the time that plaintiff purchased the property, it contained a number of dilapidated accessory structures. Plaintiff removed most of them, but retained the structure at issue in this case, a garage with an upstairs apartment. Even prior to the construction undertaken by plaintiff, the structure failed to conform to governing ordinances. Ordinance 102-87 requires a setback of 150 feet from Conover Road. The structure was sited 49.6 feet from the road. Ordinance 102-84.C(6) permits a maximum building footprint of 900 square feet, whereas the structure's footprint was approximately 1,143 square feet. The same ordinance limits the maximum floor area to 1,200 square feet, but the structure's floor area was 2,286 square feet. Although the record is unclear, it appears that the structure did not initially violate Ordinance 102-48D, which caps the permitted building height at twenty-five feet.

In May 2005, plaintiff commenced extensive renovations and three additions to the structure, transforming it from a rectangular building that was basically perpendicular to the road to an entirely architecturally different L-shaped building, with a 414-square foot addition paralleling the road, a 228-square foot semicircular single-story "meditation room" at the rear, and a twenty-three-square foot entry porch on the side of the building away from the road. The building's footprint was increased to approximately 1,601 square feet, its floor area to 2,928 square feet, and its height to twenty-six feet as the result of reconstruction of the roof. Both the addition forming the L and the semicircular addition to the rear of the building violated the Township's setback requirements.

The construction came to the attention of the Township in September 2005, and a formal complaint was issued by the Code Enforcement Officer on September 16, 2005. He advised plaintiff to cease construction and to file an application for a construction permit. However, that permit was denied as the result of the need for variances that had not been obtained. On February 23, 2006, plaintiff filed a development application in which he sought the necessary variances, claiming entitlement pursuant to N.J.S.A. 40:55D-70c(1) (hardship) and -70c(2) (planning). The Colts Neck Zoning Board of Adjustment held hearings on the application on April 20, 2006, June 15, 2006 and July 20, 2006. Plaintiff did not testify at the hearings, but certifications by him and his wife were presented. Plaintiff offered as expert witnesses on his behalf Gordon Gemma, a licensed professional planner, Richard DiFolco, a licensed professional engineer, and David Feldman, plaintiff's architect.

Gemma presented to the Board photographs, which he testified illustrated that the building at issue was screened from Conover Road and neighboring properties by vegetation. He additionally noted that there were no sidewalks in the area, and that traffic on Conover Road was fast-moving, thereby decreasing the visual impact of the building. While acknowledging the new construction on the side of the building had a setback of only 63.13 feet and construction on the back of the building had a ninety-five-foot setback, Gemma emphasized that the new construction was further from the road than the 49.6-foot setback of the original nonconforming structure. He testified that the construction had created an esthetically pleasing structure; removed the threat to health, safety and welfare posed by the building's prior dilapidated condition; and had no detrimental impact on surrounding properties positive features that Gemma found supported issuance of all the variances sought by plaintiff. Additionally, in addressing the increase in the footprint of the building beyond its already nonconforming 1,143 square feet to 1,601 square feet, Gemma stressed that the entire site continued to conform to applicable impervious coverage requirements. He also excused the building's violation of height restrictions by noting that a mere one-foot deviation existed. Gemma countered potential objections that the property on which the accessory structure stood could later be subdivided and sold as a residence by noting that the siting of the main house precluded such a step. Gemma found no negative impact as the result of the construction.

Gemma additionally testified that plaintiff's application met the goals of the Township's Master Plan because it permitted the restoration of a dilapidated building into an aesthetically pleasing structure and because the siting of the main residence preserved agrarian land and fostered the large-acre zoning plan applicable to the area.

Testimony by professional engineer DiFolco was given on the final day of the hearing. DiFolco stated that the semicircular addition to the rear of the structure was to be revised to remove walls and windows, leaving a roof and patio, thereby reducing the visual impact of the building but not changing its footprint or floor area. Like Gemma, DiFolco testified that the impermeable coverage created by the buildings on the site fell well below the Township's maximum. Moreover, DiFolco noted that the 900-square foot maximum footprint for an accessory structure that remained uniform throughout the three residential zoning districts in the Township was not proportional to lot size, and he suggested that that proportionality should be considered.

Additional testimony was given by plaintiff's architect, Feldman, as to the changes to be made in the sun or meditation room and as to the proposed uses of the remainder of the structure.

A member of the public objected to plaintiff's proposal, noting that the character and construction of the old structure had been completely changed, and that nothing necessitated the building's continued existence in a nonconforming location. He also argued that the buffering aesthetically benefited only plaintiff and his family, and that the proposed variances so far exceeded limits put in place by existing ordinances as to require denial.

At the conclusion of the hearing, the Board unanimously voted to deny the variances, expressing the opinion that the building, while undeniably beautiful, was too large and the deviations from required limits too great. The vote was memorialized in a resolution passed on August 17, 2006. In that resolution, the Board noted that, in seeking to satisfy the positive criteria required by the N.J.S.A. 40:55D-70c(1) and (2), plaintiff had focused on the dilapidated condition of the structure prior to reconstruction and its improved aesthetic value. Addressing the negative criteria, plaintiff focused on the lack of visibility of the structure from adjoining properties as the result of buffering. However, the Board found this evidence was insufficient to justify relief. It stated:

The positive criteria require[] either a demonstration that there is a hardship associated with the property or that the application relates to a specific piece of property wherein the purposes of the Municipal Land Use Law would be advanced by a deviation from the requirements of the Ordinance. With respect to the front yard setback issue the Board acknowledges that the structure is a pre-existing one. However, the Board of Adjustment notes that the existing structure is substantially larger than that permitted for accessory structures in the zone. The existing building is 127% of the allowable 900 sq. ft. of building footprint. Existing floor area is 190% of the 1,200 sq. ft. of floor area permitted in the zone. Consequently, the building is already substantially oversized. The Board of Adjustment finds no reason to place additions on an already oversized structure which additions will more egregiously violate the setback requirements of the zone.

The Applicant provided no compelling testimony to justify the need for the additions. The Applicant presented no testimony that the existing structure could not be renovated in place to accommodate the same recreational accessory uses on a more appropriate smaller scale. While the Board of Adjustment would agree that any addition to be placed on the structure would require variance relief due to the structure's existing location, the Board of Adjustment finds that since this is already a substantially oversized building, there is no extraordinary or exceptional situation affecting this property or the structures lawfully existing thereon which results in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the Applicant. The Applicant already has the benefit of an existing structure substantially larger than that which is permitted. That structure can be renovated and updated without creating the egregious new variances.

The Board additionally found that plaintiff had provided no testimony that would indicate that the additional building height was necessary or that a conforming height could not be accomplished. Nor was any evidence produced that the deviation from existing zoning would in some fashion advance the purposes of the Municipal Land Use Law (MLUL) other than plaintiff's contention that the refurbishing resulted in an aesthetic improvement that would, in any event, only inure to the benefit of plaintiff and his family because of the lack of visibility from adjoining land that plaintiff claimed to exist. Further, the Board found that any aesthetic benefits could have been accomplished without increasing the size and height of the structure.

Additionally, the Board found that no testimony had satisfied the positive criteria for expanding the existing over-sized structure to have a footprint of 178 percent of that permitted and a floor area of 246 percent of what was allowed. And it noted that no cost analysis was provided that would justify refurbishment, rather than demolition of the existing dilapidated, nonconforming structure and the construction of a conforming structure in another part of the five-acre property.

As a final matter, the Board found that plaintiff had failed to meet the negative criteria for the grant of variance relief. It stated:

The Board of Adjustment finds that the grant of the requested variances would result in a substantial detriment to the public good. The Board of Adjustment finds that this is an accessory building which is permitted in the zone. However, the governing body has placed limitations upon the size of such structures in order to maintain appropriate scale and intensity of use to be permitted in connection with accessory activities for single family residential parcels. To grant the Applicant approval in this case, when the Applicant has demonstrated no need for the excessive height, building foot print or floor area would require the Board of Adjustment to grant similar variances to any other Applicant based solely on the desire to have a larger structure.

The Board concluded by determining that a grant of the requested relief would result in a substantial impairment of the Zone Plan and Zoning Ordinance. It found that the various provisions at issue operated, in an interrelated fashion, to "prevent the construction of massive accessory structures which are too intense for single family residential uses." Individually, the deviations requested by plaintiff were substantial; cumulatively, they were "egregious, excessive and violative of the intent and purpose of the Ordinance."

The Board of Adjustment finds that the proposed structure is large enough to constitute an entire additional residence. This is not what the Ordinance provisions were intended to achieve. The Board of Adjustment notes that the principal residence under construction has approximately 8200 sq. ft. of floor area. That structure is of adequate size to house any of the desired recreational uses which the Applicant may have wished to incorporate into the accessory structure but will not fit within the confines of the Ordinance limitations.

Following the institution of the prerogative writ action and the completion of pretrial proceedings, plaintiff's action was bifurcated to permit consideration, first, of whether the Board had acted arbitrarily and capriciously in voting to deny the requested variances and, second, of whether the 900-square foot limit upon the footprint of accessory structures and the 1,200-square foot floor area limit contained in Ordinance 102-84.C(6) should be invalidated.

A nontestimonial hearing on the first issue occurred on May 23, 2008. At its conclusion, the trial judge determined that the Board's action was not arbitrary, capricious or unreasonable. In doing so, the judge noted the concession by plaintiff's counsel that if the building had been constructed from scratch in its present location, the Board would have been justified in denying the necessary variances. The judge found similar reasoning applicable to the existing building, determining that reconstruction of the existing nonconforming structure within its initial footprint would have been permissible, but that the Board acted reasonably in finding that the structure, as constructed, was not. Additionally, the judge commended the Board for deciding the issues presented on the merits, without reference to the "big gorilla" present as the result of plaintiff's completion of the unauthorized construction. The judge stated:

[A]s I analyze it, what this owner did was he followed a philosophy of better to ask forgiveness than permission. That's what he did here. And I do not find that's why [the application] was denied. I find it was denied for proper legal reasons.

As described by the judge, who had personally viewed the building, it appeared to be "like another residence," which, he found, was "exactly what the town has a right not to want." The judge further observed that any benefit to be derived from the accessory structure accrued only to its owners, not to the Township of Colts Neck. As a consequence, the judge found that the Board's denial of variance relief pursuant to N.J.S.A. 40:55D-70c(1) and (2) did not constitute an abuse of its discretion.

On January 6, 2009, trial was held with respect to the validity of Colts Neck Ordinance 102-84.C(6), limiting the footprint of accessory structures to 900 square feet and the total floor area to 1,200 square feet, regardless of the differing acreage requirements of Colts Neck's three residential zones. At the hearing, Andrew Janiw, a licensed planner, testified as an expert on behalf of plaintiff, and Timothy Anfuso, the planner for the Township of Colts Neck, testified on behalf of the defendants.

As framed by plaintiff's counsel, Janiw was offered to demonstrate that the ordinance at issue did not further the purpose of zoning for which it was adopted, namely, to insure "that accessory structures are subordinate to the principal structure," that the ordinance conflicted with the Township's Master Plan, and that it did not advance a purpose of the MLUL. Janiw testified that plaintiff's home was located in the A-1 zoning district, which had a 88,000-square foot minimum lot size. The A2 district had a 40,000-square foot minimum, and the A3 district had a 30,000-square foot minimum. In all three zones, the maximum coverage by accessory buildings was five percent of the lot area, and all contained the 900-square foot footprint restriction as well as the 1,200-square foot floor area restriction. The effect of the governing ordinances was to permit the construction of multiple accessory structures, but to limit the size of each. This scheme, Janiw testified, forced multiple accessory buildings "without the efficiency, if you will, of having an accessory structure relative to what the master plan or the ordinances envision uses of accessory structures" and made no provision for the relationship of any one accessory structure to the size of the lot.

At the trial, plaintiff's counsel sought testimony from Janiw as to whether the challenged ordinance was consistent with Colts Neck's Master Plan. However, upon objection from defendants' counsel, the trial judge barred the testimony as a surprise, it not having been addressed in Janiw's expert report or in a supplement that could have been served after receipt of the report of the defendants' expert.

Turning to the ordinance itself, Janiw testified that the ordinance was arbitrary in imposing the same restrictions on zones with vastly differing lot sizes. Thus, he testified, in an A3 zone, one could construct a 900-square foot accessory building with a home having a footprint of 1,980 square feet, thereby permitting an accessory structure that was approximately one-half the size of the residence, whereas in the A-1 zone, the accessory structure could only be one-fifth or one-sixth of the size of the footprint of the main residence. According to Janiw, proportionality in size between the main residence or lot size and the accessory structures should exist.

Janiw admitted that the ordinance was framed as it was because the governing body did not want the accessory structure "to appear as another home or something that could be easily converted to another home on the property." Additionally, he admitted that the accessory structure on plaintiff's property "has a residential character, absolutely," that someone driving by could say "oh, they've got two residences on this property," and that, at approximately 3,000 square feet, it was big enough to be a residence and indeed bigger than most. Nonetheless, Janiw found the size limitation as applied in the A-1 zone not to be reasonable, given the types of accessory structures that were permitted in that zone. Further, Janiw argued that the existence of multiple accessory structures, as permitted by the ordinance, would have a greater detrimental effect on the property and would be less efficient in terms of construction, creation of impervious areas, and the need to link the buildings together through walkways. Moreover, he claimed that the limitation on size would restrict the use of accessory structures for certain recreational purposes such as an indoor basketball court and, therefore, Colts Neck's zoning lacked "the ability to accommodate, if you will, the whims of the wealthy."

Janiw testified that he had researched the ordinances of neighboring, demographically-similar municipalities as they related to accessory structures and found that, generally, they related coverage of such structures to lot area, particularly in connection with larger lots. However, he acknowledged on cross-examination that Millstone Township and Holmdel had ordinances similar to that of Colts Neck, all of which he deemed "too restrictive" and arbitrary in their nature.

Following the conclusion of Janiw's testimony, Timothy Anfuso, Colts Neck's municipal planner and author of its most recent Master Plan, was called by defendants as a witness. Anfuso testified that the ordinance at issue met the requirements set forth in Riggs v. Long Beach Twp., 109 N.J. 601, 611 (1988), namely, that it (1) advanced one of the purposes of the MLUL as set forth in N.J.S.A. 40:55D-2; (2) it was substantially consistent with the land use and housing plan elements of the Master Plan or designed to effectuate such plan elements; (3) it comported with constitutional constraints on the zoning power, including those pertaining to due process; and (4) it was adopted in accordance with statutory and municipal procedural requirements.

Anfuso testified that the footprint, floor area and height restrictions of the ordinance promoted the general welfare, a stated purpose of N.J.S.A. 40:55D-2a, by insuring that the accessory structures that were the subject of the ordinance were actually used in a subordinate manner and could not easily be converted into separate residences or businesses. Additionally, the ordinance promoted adequate light, air and open space, a purpose set forth in N.J.S.A. 40:55D-2b, by prohibiting McMansion-sized accessory structures and that it was substantially consistent with, although not identical to ordinances of five out of seven neighboring municipalities, a purpose set forth in N.J.S.A. 40:55D-2d. Additionally, Anfuso testified that the challenged ordinance satisfied N.J.S.A. 40:55D-2e and Colts Neck's Master Plan by promoting population densities that preserved the Township's scenic and rural character and prohibited over-development. Anfuso stated:

A sliding scale ordinance would permit larger accessory buildings, which increases the perceived density to two or more units per lot. Therefore the ordinance helps establish the appropriate densities and concentrations by encouraging multiple smaller accessory structures that appear subordinate and incidental to the main house, best promoting a lower density and increasing light, air and open space.

In addition, the ordinance promoted preservation of the environment by encouraging smaller accessory buildings, which would help reduce the overall amount of lot coverage, thereby minimizing off-site runoff and promoting infiltration, which in turn would improve water quality in the reservoirs. As a final matter, Anfuso found that the ordinance promoted a desirable visual environment, a purpose set forth in N.J.S.A. 40:55D-2i.

With respect to whether the ordinance was consistent with the Master Plan, Anfuso testified that a primary purpose of the Plan had always been "to preserve the combination of open space, agriculture and well-buffered, low density residential housing that was the cornerstone of the township's rural and scenic character." The ordinance furthered that purpose by prohibiting large accessory structures that could be perceived as increasing the density of the permitted housing and limited such structures to ones that were clearly incidental to the main residence. Indeed, when the ordinance was proposed, it was sent to the Planning Board for a determination of its consistency with the Master Plan, and the Board found consistency to exist. Additionally, Anfuso testified that the ordinance preserved the character of the zone as envisioned by the Master Plan.

Addressing the third Riggs criterion, Anfuso testified that the ordinance comported with constitutional constraints on the zoning power because its enactment was authorized pursuant to N.J.S.A. 40:55D-65b, conferring power on municipalities to enact ordinances that regulate bulk, height, number of stories and size of buildings. And as a final matter, Anfuso testified that the adoption of the ordinance was procedurally proper.

Anfuso testified that if the sliding scale espoused by plaintiff were adopted, limiting the footprint of accessory structures at five percent of the lot size, because plaintiff possessed 220,221 square feet of land, he would be able to erect an accessory building with a footprint of 11,000 square feet that would be larger than his principal residence.

Following summations, the trial judge delivered an oral opinion from the bench. After setting forth the standard of review and noting the heavy burden of proof imposed upon plaintiff to demonstrate that there was no discernable reason of policy for the enactment of the challenged ordinance, the judge observed that "there is no way anyone with a half a brain could say that there is no discernible reason why this ordinance was passed." Elaborating, the judge found that the ordinance fostered the existence of

multi smaller accessory structures on residential properties[, which] is in keeping with the historical pattern of development and will preserve the scenic and rural character of Colts Neck and maintain a desirable visual environment. That's what it's designed to do.

* * *

[A]s Mr. Anfuso said, the ordinance envisions and prefers the small, the multiple small buildings instead of one [big] building because the appearance of the small would be they are indeed subordinate to the principal use.

And I find that indeed the objective of the original master plan was the preservation of the open character of the township as a low density residential area of agricultural activities. And that was the continued goal of the 2004 master plan, which was to preserve the open space, agriculture and the well-buffered low density housing, which is the cornerstone, [Anfuso] said, of the township's rural and scenic character.

This ordinance, [Anfuso] contends, and I agree, promotes light, air and open space by preventing the McMansion size accessory structure. That's what this [plaintiff's accessory building] is. This thing is bigger than many people's residences in this county.

In conclusion, the judge found that, in passing the ordinance in question, the Township had properly used its zoning authority "to place the good of the community over the whim of the wealthy." He thus found in favor of defendants on the issue of the validity of the ordinance.

II.

We turn first to plaintiff's contention that the determination of the Zoning Board of Adjustment to deny the requested variances was arbitrary and capricious.

N.J.S.A. 40:55D-70 confers upon zoning boards of adjustment the power to grant "c" or "bulk" variances. N.J.S.A. 40:55D-70c(1) governs hardship variances, providing:

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.

N.J.S.A. 40:55D-70c(2) permits variances when

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 . . . .

The Zoning Board of Adjustment found that plaintiff had failed to present evidence that would justify the grant of the "c" variances that he requested. The trial judge held that the Board had not acted arbitrarily, capriciously or unreasonably in its determination of the issue. We agree.

When we consider an appeal of a trial court's review of a municipal board's action, we are bound by the same standard as the trial court. New York SMSA, Ltd. P'ship v. Bd. of Adj., Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). We give deference to a municipal board's decision, and such decisions should be overturned only when proven arbitrary, capricious or unreasonable. Ibid. "Because variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." Ibid. A court's scope of review "is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adj., Twp. of Wall, 184 N.J. 562, 597 (2005). We do not substitute our judgment for that of the municipal board. Leon N. Weiner & Assocs., Inc. v. Zoning Bd. of Adj., Borough of Glassboro, 144 N.J. Super. 509, 514 (App. Div. 1976), certif. denied, 73 N.J. 55 (1977).

[Cohen v. Bd. of Adj. of the Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007).]

In reviewing the record in this matter, we "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 . . . applications for variance.' Ward v. Scott, 16 N.J. 16, 23 (1954). Therefore, the law presumes that boards of adjustment and municipal governing bodies will act fairly and with proper motives and for valid reasons." Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). Moreover, we recognize that boards of adjustment must be accorded wide latitude in the exercise of their delegated discretion. Ibid. "So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere." Ibid.

On appeal, plaintiff claims that the nonconforming location of the accessory structure at issue created a hardship warranting the grant of a c(1) variance. In support of that claim, plaintiff focuses first on the setback requirement and argues that "[t]his in itself establishes a hardship if the ordinance is strictly applied since the structure would be forced to stay in its current poor condition." However, the record does not reflect any evidence that a variance (if necessary) would have been denied if plaintiff had merely sought to rehabilitate the existing nonconforming structure. Indeed, similar relief has been granted elsewhere. See Hawrylo v. Bd. of Adj. Harding Twp., 249 N.J. Super. 568 (App. Div. 1991) (granting small side-lot variance and permitting reconstruction of barn on an existing nonconforming one-story foundation when reconstruction saved the applicant $15,000, it permitted the use of an existing water supply, facilitated improvement of that part of the property, and posed no substantial detriment to the public good). Moreover, in its resolution in the present matter, the Board signaled its willingness to permit renovation of the existing structure when it stated: "Applicant already had the benefit of an existing structure substantially larger than that which is permitted. That structure can be renovated and updated without creating the egregious new variances."

However, mere renovation is not what plaintiff sought to accomplish here. Instead, he vastly increased the already nonconforming footprint and floor area of the building, increased its height by one foot, and constructed three additions, each of which constituted new encroachments on governing setback requirements. Plaintiff offers no evidence of any "hardship" requiring such extensive modification of an already existing oversized building, other than to state that, given the building's location, he could not build what he could have built if the building had been sited otherwise. We find that reason to be insufficient to meet the statute's positive criteria.

Plaintiff argues additionally that the Board acted arbitrarily in denying him a c(2) variance. The Supreme Court has recognized that the c(2) variance is "entirely different" from a c(1) variance, and that the grant "must be rooted in the purposes of zoning and planning and must advance the purposes of the MLUL." Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 562 (1988). Additionally, the applicant must demonstrate that the benefits of granting the variance would substantially outweigh any detriment to the public good or impairment of the intent and purpose of the zoning ordinance. Wawa Food Mkt. v. Planning Bd. of Ship Bottom, 227 N.J. Super. 29, 40 (App. Div.), certif. denied, 114 N.J. 299 (1988).

The Supreme Court has explained that the focus of a municipal agency considering an application for a c(2) variance should be community-wide.

[N]o c(2) variance should be granted when merely the purposes of the owner will be advanced. The focus of a c(2) case, then, will be not on the characteristics of the land that . . . 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.

* * *

Obviously, the Legislature contemplated that deviations from zoning requirements without "hardship" could advance the purposes of zoning, else it would not have enacted the c(2) provision. By rooting the c(2) variance in the purposes of the MLUL, the Legislature has confined the discretion of boards: they cannot rewrite ordinances to suit the owner or their own idea of what municipal development regulations should be. Rather, the board should seek . . . to effectuate the goals of the community as expressed through its zoning and planning ordinances.

[Kaufmann, supra, 110 N.J. at 563-64.]

In attempting to satisfy these criteria, plaintiff notes the aesthetic and safety-related benefits flowing from his entire plan, which encompassed the demolition of a number of accessory structures, as well as the rehabilitation and substantial enlargement of the building at issue. See N.J.S.A. 40:55D-2i (aesthetics) and -2b (safety). However, as we noted when discussing the rejection of plaintiff's application for a c(1) variance, both the touted aesthetic and safety upgrades could have been achieved without the increase in footprint and floor area in an already oversized building to which the Board objected. Moreover, as the Board properly noted, because of screening plantings, any aesthetic benefits would accrue only to the benefit of plaintiff and his family, not the community. The same can be said of the increase in structural integrity resulting from the new construction. Plaintiff has additionally argued that the renovation of the building at issue, when combined with the demolition of other structures, satisfied the purposes of the MLUL by providing adequate light, air and open space. See N.J.S.A. 40:55D-2c. However, there was no testimony as to the size of the buildings that were demolished or their impact on light, air and open space when compared to the creation of a vastly oversized single structure big enough to serve as a separate residence.

Even if we assume a relationship between plaintiff's demolition and construction activities a matter that was not demonstrated to the Board it retained the discretion to conclude, based upon its knowledge of existing ordinances and the character of the community, that creation of a second, residence-sized building on plaintiff's lot did not constitute a better zoning alternative for the property and, indeed, constituted a detriment to the public good that outweighed any potential zoning benefits that could be found to exist. As a consequence, we find no error in the trial judge's conclusion that the Board acted properly in denying the variances requested in this case.

As a final matter, we find no error warranting reversal to have arisen from the trial judge's determination to bar testimony by plaintiff's expert Janiw regarding the alleged incompatibility between the challenged ordinance and Colts Neck's Master Plan. As plaintiff admits in the present appeal, all such arguments were also contained in the trial brief presented to and considered by the trial judge. Thus, there was no demonstrable prejudice.

III.

As we have noted, plaintiff has also mounted a challenge to the validity of zoning ordinance 102-84C(6) because, according to plaintiff, "it bears no rational nexus to the evils sought to be addressed by the Ordinance." We commence our analysis of this challenge by quoting the Supreme Court's statement of fundamental principals pertaining to the power to zone.

Municipalities do not possess the inherent power to zone, and they possess that power, which is an exercise of the police power, only insofar as it is delegated to them by the Legislature. Taxpayer Ass'n of Weymouth Township v. Weymouth Township, 80 N.J. 6, 20 (1976). A zoning ordinance is insulated from attack by a presumption of validity, which may be overcome by a showing that the ordinance is "clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute." Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973); accord Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 368 (1987); Weymouth Township, supra, 80 N.J. at 20. The party attacking the ordinance bears the burden of overcoming the presumption, Ward v. Montgomery Township, 28 N.J. 529, 539 (1959); LaRue v. East Brunswick, 68 N.J. Super. 435, 454 (App. Div. 1961); and, in meeting the burden, that party may rely on extrinsic evidence, Bellington v. Township of East Windsor, 32 N.J. Super. 243, 248 (App. Div. 1954). Courts should not question the wisdom of an ordinance, and if the ordinance is debatable, it should be upheld. Bow & Arrow Manor, supra, 63 N.J. at 343; see also Zilinsky, supra, 105 N.J. at 368-69 ("[a] mere difference of opinion as to how an ordinance will work will not lead to a conclusion of invalidity; 'no discernible reason' is the requisite standard.

[Riggs, supra, 109 N.J. at 610-11.]

In arguing that Ordinance 102-84.C(6) conflicts with the Master Plan, plaintiff notes that the Plan recognizes recreational purposes as a currently-desired use for an accessory structure, and he claims that all of the recreational purposes envisioned for his accessory structure could not be accommodated in a facility with a 900-square foot footprint. Thus, he posits a conflict to exist between the ordinance and the Plan. However, he concedes that the uses could be accommodated by building several conforming accessory structures.

Plaintiff acknowledges the testimony of Colts Neck's town planner, Anfuso, that the limitation on the size of all accessory structures was to ensure that they remain subordinate to the principal structure. However, plaintiff then claims that the one-size-fits-all limitation is arbitrary and capricious in light of the likely desire of the wealthy residents of the A-1 district to construct larger accessory buildings and in that context, the ordinance does not rationally relate to the purpose of subordination. He argues that separation of recreational activities into various permitted structures would result in a proliferation of smaller buildings that would constitute a detriment to proper planning, and that a better approach would be to permit accessory structures to be built on a scale that was proportional to the lot size.

However, as we have previously set forth at length, at trial defendants' expert, the author of Colts Neck's Master Plan and the ordinance at issue, testified in detail and with specificity on the manner in which the ordinance in question met the four criteria for validity set forth in Riggs. In essence, he testified that Colts Neck sought to preclude accessory structures that could easily be converted into separate residences or businesses, and it did so by imposing a uniform bulk restriction on such structures as had at least two other demographically similar municipalities. Thus, what was presented to the trial judge was not an ordinance with no discernible reason for its enactment. Rather, at most, the wisdom of the ordinance was debatable. Such a showing, under Riggs' standards, is insufficient to warrant invalidation. We thus find no error in the trial judge's similar conclusion.

 
Affirmed.

Plans for utilization of part of the structure by plaintiff's wife as a place to meet professional colleagues or for any other business use were dropped during the variance application process.

The residence has a footprint of approximately 8,500 square feet.

There was no testimony before the Board regarding the setback on the porch. However, it must have violated the governing setback ordinance as well.

Plaintiff offered to provide additional buffering during the course of the hearings.

N.J.S.A. 40:55D-1 to -163.

Plaintiff later conceded that the third and fourth criteria had been met.

See Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 369 (1987) (quoting Roselle v. Wright, 21 N.J. 400, 409-10 (1956)).

We reject the argument that the trial judge improperly considered the fact that plaintiff had failed to obtain a building permit and required variances before undertaking construction and that a new trial is therefore warranted. While references to plaintiff's conduct appear in the record, the judge's decision is firmly based upon existing precedent, which amply supports the result that occurred herein.

(continued)

(continued)

31

A-3056-08T1

January 6, 2010