THOMAS WILSON v. BRICK 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NOT FOR PUBLICATION WITHOUT THE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-5735-09T4

THOMAS WILSON,

Plaintiff-Appellant,

v.

BRICK TOWNSHIP ZONING BOARD

OF ADJUSTMENT,

Defendant-Respondent.

_________________________________________________

May 6, 2011

 

Argued February 3, 2011 Decided

 

Before Judges Payne and Baxter.

 

Onappeal from theSuperior Courtof NewJersey, Law Division,Ocean County,Docket

No.L-119-07PW.

 

Robert J. Pansulla argued the cause for

appellant (Finazzo Cossolini O'Leary Meola

& Hager, L.L.C., attorneys; Mr. Pansulla, on the brief).

 

Dennis J. Cantoli argued the cause for

respondent (Sinn, Fitzsimmons, Cantoli,

Bogan & West, attorneys; Mr. Cantoli, on the

brief).

PER CURIAM

Plaintiff, Thomas Wilson, appeals from an order affirming the decision of the Brick Township Zoning Board of Adjustment, set forth in a resolution dated August 5, 2009, denying plaintiff's application for bulk variances with regard to the location of a swimming pool on plaintiff's back deck. On appeal, plaintiff argues that the Board's actions were arbitrary, capricious and unreasonable, and he urges reversal. We affirm.

I.

This matter has had a tortured history. Since 1999, plaintiff has owned property on Toledo Drive, Brick, New Jersey. The property is situated in a R-5, single family residence zone, and is improved with a single family house that backs on Barnegat Bay. The front of the house is located 41.6 feet from the front property line, and its back is located 18.5 feet from the rear property line. Additionally, plaintiff has riparian rights that extend 2.5 feet further to the bulkhead line. The property does not form a perfect rectangle. Rather, the west side measures 112.10 feet to the rear property line, whereas the east side measures 106.18 feet. This difference is manifest in the deck area to the rear of the house.

Following his purchase of the property, plaintiff expanded a pre-existing deck to cover the entire back of the property at an elevation of 54 inches above ground that extends beyond the bulkhead line by 4.80 feet. The deck, like the property, is not quite rectangular. The area of the deck is greater on the west side than on the east. The west side of the deck is further enlarged as the result of a setback to the rear face of the house on that side. Access to the deck is provided by two side-by-side eight-foot sliding doors, located on the more protruding face of the back of the house and opening onto the east side of the deck.

In addition to improving the deck, plaintiff constructed a sixteen-foot by eighteen-foot pool on the east side of the deck that extends slightly beyond the rear property line and within 1.35 feet of the bulkhead line. The project was completed without obtaining construction permits or required bulk variances. Litigation ensued, and plaintiff was fined.

In July 2006, plaintiff applied for the bulk variances required by his construction. They were denied by the Board, and that denial was affirmed in a subsequent action in lieu of prerogative writs. However, on further appeal to us, in a published opinion, we reversed the decision affirming the denial of a rear-yard setback variance for the deck, permitting zero setback, whereas the zoning ordinance required fifteen feet. Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 201 (App. Div. 2009). We held that plaintiff was not entitled to a variance pursuant to N.J.S.A. 40:55D-70c(2) (C2 variance) because plaintiff's improvement was of no apparent benefit to the community and because plaintiff's illegal construction could not be said to advance the purposes of the Municipal Land Use Law (MLUL) 40:55D-1 to -163. Id. at 197-200. However, we found the granting of a variance pursuant to N.J.S.A. 40:55D-70c(1) (C1 variance) rear-yard setback variance with respect to the deck to be supported by the record. We stated:

None of the parties have contested that the home is a lawfully existing structure on the property. The home, as constructed, has a forty-one foot front yard setback and an eighteen foot rear yard setback. Because of the location of this lawfully existing structure on the property and the fifteen foot required rear yard setback for a deck, a strict application of the zoning ordinance would result in allowing only a three foot deck. The resulting situation would certainly present "peculiar and exceptional practical difficulties" for the homeowner. Further, the proofs indicate that a variance with respect to the rear yard deck setback would not be a substantial detriment to the public good or impair substantially the intent and purpose of the zoning plan and ordinance. Consequently, because the lawfully existing dwelling's placement on the lot creates an extraordinary and exceptional situation resulting in peculiar and exceptional practical difficulties to an owner who wishes to place a deck larger than three feet in his rear yard and because none of the negative criteria would be affected by this development, the variance with respect to the rear yard deck setback should have been granted.

 

[Id. at 201 (footnote omitted).]

 

In addition to the rear-yard setback variance sought for the deck, plaintiff had also sought and been denied rear- and side-yard setback variances for the pool; side-yard setback variances for the dwelling, deck and a shed; and a maximum lot coverage variance. On appeal, we declined to decide whether such variances should have been granted, finding that neither the plaintiff nor the Board adequately addressed the criteria for a C1 variance as they pertained to these other requests. Id. at 202-03. In doing so, we noted that plaintiff's expert had testified that construction of the deck and pool within the zoning requirements was "impossible," but had given no detail to support this conclusion, which the Board was not required to accept. Id. at 202. We stated:

The open question is whether the strict application of the municipality's zoning ordinance to plaintiff's desire to improve the rear yard of his property with a deck and pool results in peculiar and exceptional practical difficulties due to the size of the rear yard where the limited rear yard is the result of the apparently legal placement of the house on the lot. If plaintiff is able to demonstrate that to defendant, he must then demonstrate how he is unable to conform his specific and detailed plans to the zoning requirements without peculiar and exceptional practical difficulties.

 

[Id. at 203.]

 

We therefore remanded the issue to the trial court, with the instruction that it then be remanded back to the Board for its consideration. We stated:

On remand to defendant, plaintiff is to submit to defendant within sixty days of our decision a current survey showing the dimensions of the existing deck and pool, as well as the effect of the bulk zoning ordinances on the existing deck and pool. Plaintiff is also to submit within that same timeframe any modifications to the existing improvements he wishes to make in order to attempt to conform his application for a deck and pool to the zoning ordinances. We do not imply in our remanding the matter as to how defendant should pass on the question of the variances. The purpose of our remand is so that both plaintiff and defendant can, in accordance with the appropriate criteria of C1, analyze plaintiff's application, as it currently stands and as it may be amended.

 

[Id. at 203-04.]

 

A hearing by the Board was conducted on July 15, 2009, at which time testimony was given on plaintiff's behalf by professional engineer and planner Charles Lindstrom. Although the Board took the position that it was viewing the variance request as though no construction had occurred, the plan presented to the Board was the as-built plan, without any proposed modification. Thus, with respect to the pool, which was the focus of the hearing, a side-yard setback of 3.4 feet existed, whereas 5 feet was required. No rear-yard setback existed, whereas a setback of 15 feet was required. Lindstrom testified that a sixteen-foot by eighteen-foot pool could not be fit onto the deck in conformance with municipal rear-yard setback requirements.

Lindstrom was then asked why the pool could not be smaller and moved to the west, where the deck was larger, thereby decreasing the extent of the variances requested and bringing the pool within the property line. Lindstrom did not directly answer the question. He was then asked whether he had expertise with respect to pools, and he said no. The following exchange occurred:

BOARD MEMBER: So, your professional expertise is in, relative to this application, your experience [is] as an engineer and as a planner, not as a pool manufacturer, not a pool designer and not a pool specifier?

 

MR. LINDSTROM: Correct.

 

BOARD MEMBER: So, your testimony with regards to providing a pool that's smaller than proposed here on this plan, do they make pools smaller and you wouldn't be prepared to answer that question; is that correct?

 

MR. LINDSTROM: I can't answer for standard pool sizes off the top of my head. Pools generally can be modified to sizes that are necessary for certain installations.

 

Lindstrom also admitted that he had seen smaller pools in Brick Township.

Lindstrom was then asked again if it would not be more advantageous to place the pool on the west side of the property so as to have sufficient space to exit through the sliding doors and to permit the use of the easternmost door, which was presently situated too close to the pool for safe egress. Lindstrom responded: "It would provide more room for the pool, but it would provide less room for the people who will be using the deck." He admitted that if the pool were situated on the west side of the deck it would not have to extend beyond the property line, but he found that to be an "insignificant benefit."1

As the hearing continued, a Board member asked: "Help me understand the hardship for the pool." The following exchange then took place:

MR. LINDSTROM: The hardship is that there's not enough room to put a conforming or a pool that is of a reasonable size in this rear yard. That's the hardship. Okay. Now, if you were to say, well, because he doesn't have enough room, maybe he shouldn't have a pool, my argument is, he should be entitled to some relief from the strict adherence to the requirements to have a pool, just as any other resident in Brick can have a pool if they happen to have the additional area that would allow it.

 

BOARD MEMBER: But, when the questions have come with regard to the size of the pool and the positioning of the pool, I'm hearing [a] lack of response, other than this is the way it is; am I correct?

 

MR. LINDSTROM: This is the way it is now, that's correct. There's always options, if you have a clean slate.

 

In addition to testimony by Lindstrom, the son of plaintiff's neighbor to the east testified that his parents had no objection to the construction as it presently existed, including the pool. No objectors appeared.

At the conclusion of the hearing, the Board voted to grant the maximum lot coverage variance and setback variances for everything but the pool.2 When discussing the pool, one Board member remarked, "I don't see any proof why the pool needs to be this specific size that's presented in the application." "We have not heard any professional opinion or testimony by anyone licensed or in the professional capacity of sizing pools . . . tell us that this [the existing pool] is the smallest that's available to the applicant to place on this property." Further, he saw no reason why a pool of the same dimension could not be placed on the west side of the deck, where there would be more room to circulate and smaller variances would be required. Additionally, he expressed safety concerns as the result of the 1.35 foot space that would remain between the pool and the bay if plaintiff removed the decking that extended beyond the bulkhead, as he had initially agreed to do. The remainder of the Board concurred, determining that it would authorize variances so that a pool could be constructed three to five feet back from the rear property line on the west side of the deck, but that it would not permit a pool as presently located.

A resolution with respect to the pool, dated August 5, 2009, stated:

11. The Board finds and determines that:

 

a. Applicant did not provide sufficient proof as to why a 16' x 18' pool had to be built. Mr. Lindstrom is a professional engineer and professional planner and is not a pool expert. There was no proof that a smaller pool could not be constructed.

b. Because of the angle of the rear property line, if a mirror image of the pool were located on the west side of the property, a reasonable rear yard setback could be provided. This would also eliminate a portion of the pool being located over the rear property line.

 

c. The Board is also concerned about the location of the pool from a safety perspective. The plan shows that the deck over the bulkhead is to be removed. In that event, there would be only minimal area between the edge of the pool and the lagoon.

 

d. The variance request for the setback of the dwelling and the maximum lot coverage was acceptable to the Board.

 

e. The Board finds that applicant's perceived hardship is self-created. Applicant can relocate the pool to the other side of the property which would reduce the variance requested and eliminate the pool extending over the rear property line. The Board finds that the application is not in keeping with the municipal zoning ordinance and master plan.

 

Following the Board's action, plaintiff filed an amended complaint in lieu of prerogative writs demanding judgment that the Board's decision be set aside. As we stated previously, relief was denied in a written opinion, and an order of judgment was entered on June 18, 2010. This appeal followed.

II.

N.J.S.A. 40:55D-70c(1) provides:

The board of adjustment shall have the power to:

 

* * *

c. (1) Where . . . (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 . . . .

 

We have previously held in this case that the statute's "exceptional and undue hardship" condition is inapplicable here because plaintiff or his predecessor in title created the "hardship." Wilson, supra, 405 N.J. Super. at 201 n.3 and 202 (citations omitted). As a consequence, to prevail in this matter, plaintiff was required to demonstrate the existence of "(1) a lawfully existing structure on a specific piece of property; (2) an extraordinary and exceptional situation uniquely affecting that structure; (3) an extraordinary and exceptional situation resulting in (a) peculiar and practical difficulties . . . if there were strict application of the zoning code; (4) the grant of the variance would have no substantial detriment to the public good; and (5) the grant of the variance would not substantially impair the intent and purpose of the zoning plan and zoning ordinance." Id. at 200-01. The first three criteria constitute the "positive criteria" as to which proof is required; the last two constitute the "negative criteria." Id. at 200. Proof as to both must be offered in a C1 variance context. Ibid.; see also Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97, 102 (1984).

At oral argument, counsel for the Board conceded that the negative criteria had been met in this case, but he argued, and both the Board and the judge found, that the positive criteria had not. The scope of our review of that determination is narrow. We must accord great latitude to the municipal body in the exercise of its delegated discretion because of its particular knowledge of local conditions. Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967); Ward v. Scott, 16 N.J. 16, 23 (1954). And we will set aside its action only when found to be arbitrary, capricious or unreasonable. Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296 (1965). "Even when doubt is entertained as to the wisdom of the action, or as to some part of it, 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 (citations omitted). Further, we are directed to give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning. Med. Ctr. at Princeton v. Princeton Twp. Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001).

On appeal, plaintiff argues that our holding that he was entitled to a rear-yard setback variance for the deck entitled him to a similar variance for the pool, as well. We disagree with that conclusion, observing first that if such were the case, we would have so held in our initial opinion. We did not, remanding the matter for a determination whether, as a result of an extraordinary and exceptional situation uniquely affecting the land, strict application of the zoning ordinance would result in peculiar and exceptional practical difficulties in improving the property with a pool. Wilson, supra, 405 N.J. Super. at 203. Further, we find that the siting of a pool raises considerations that are different from the siting of a deck, including matters such as location, pool size, access, and safety.3

Additionally, plaintiff analogizes his case to that of the applicant in Lang v. Zoning Bd. of N. Caldwell, 160 N.J. 41 (1999), another swimming pool case. In Lang, as here, existing structures consisting of a garage and paved driveway on a very narrow lot, precluded the construction of an in-ground backyard pool without variances. After considering evidence that the proposed pool's size was "fairly typical of the size of in-ground pools installed at single-family residential properties," id. at 46, the Board granted C1 "hardship" variances that permitted an eighteen-foot by thirty-five foot pool to be constructed. However, the Board required that the pool be relocated to provide a conforming twenty-foot setback from the rear lot line and a sixteen-foot setback at its other end. Id. at 48. The Board's determinations were affirmed by the Supreme Court. Id. at 59.

As a legal matter, we distinguish Lang, since the decision turned on a discussion of the applicability of C1 "hardship" criteria, as well as C2, neither of which is applicable here. Further, we do not find the case to be factually analogous, since the issues of siting that exist with respect to plaintiff's deck differ from those that arose in Lang. That variances may be issued to permit construction of a pool of a certain size in one location, says little about a proposal for construction of a pool on a much more constricted deck elsewhere.

C

ontrary to plaintiff's position in the present matter, our review of the record does not suggest that the evidence presented by Lindstrom was ignored by the Board. What the Board concluded was that, although plaintiff demonstrated that the positioning of plaintiff's house created an extraordinary and exceptional situation uniquely affecting the property, he failed to demonstrate that the situation created peculiar and exceptional practical difficulties that could only be resolved by granting the variances that were sought for the pool in its present location. After looking at the application as though no construction had occurred, the Board concluded that plaintiff had failed to meet the positive criteria for granting a C1 variance, because the pool did not need to be where it was. Rather, a preferable location would have been on the opposite side of the deck, where greater setbacks could have been achieved, more circulation around the pool would have been possible, egress from the house would have been facilitated, safety concerns would have been alleviated, and the pool could have been constructed within existing property lines. We find nothing arbitrary, capricious or unreasonable in that conclusion.

Affirmed.

1 Prior to the hearing, plaintiff had stated an intention to remove that portion of the deck that extended 4.8 feet beyond the bulkhead. If that were accomplished, the existing pool would be 1.35 feet from the edge of the deck and the bay, but the area would be protected by a railing. However, Lindstrom stated at the hearing that plaintiff had changed his mind, and instead, was going to apply to the Department of Environmental Protection for authorization to maintain the existing structure as a deck-level parallel dock.

2 Plaintiff agreed to remove the shed, mooting that portion of the variance request.

3 We reject plaintiff's argument that the pool must be where it is presently located to avoid walking out of the back of the house and into the pool. As we have noted, the sliding doors on the back of plaintiff's house are on the easterly side. One directly abuts the pool, and for that reason, cannot be safely used. If the pool were located on the west side of the deck as the Board proposed, this difficulty would not arise.