JULIE MONTAGUE v. JOINT PLANNING AND ZONING BOARD OF THE BOROUGH OF DEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2250-11T4

JULIE MONTAGUE AND LILLIAN

MONTAGUE,

Plaintiffs-Respondents,

v.

JOINT PLANNING AND ZONING

BOARD OF THE BOROUGH OF

DEAL,

Defendants.

_______________________________________

ALICE AND ROBERT HEDAYA,

Intervenors-Appellants.

_______________________________________

Telephonically argued November 16, 2012

Decided December 20, 2012

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3090-10.

Steven J. Tripp argued the cause for appellants (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Tripp and Jessica Sweet, on the brief).

Peter S. Falvo, Jr., argued the cause for respondents (Ansell Grimm & Aaron, P.C., attorneys; Mr. Falvo, of counsel; Hussam Chater, on the brief).

PER CURIAM

The Law Division entered a final judgment dated December 5, 2011, reversing a determination of the Joint Planning and Zoning Board (Board) of the Borough of Deal (Borough) which denied an application by plaintiffs Julie and Lillian Montague for variances required to construct a tennis court on their property. Alice and Robert Hedaya thereafter intervened in the action and appealed from the trial court's judgment. We affirm.

Plaintiffs' property is an irregularly-shaped lot located within the Borough's R-1 Residential Zone. The lot is improved with a one-story frame dwelling and an in-ground swimming pool. The property fronts upon a cul-de-sac and has a large, irregularly-shaped front yard.

The Deal Golf & Country Club is located on adjoining property to the north and east. A portion of the golf course's parking lot is located adjacent to plaintiffs' property. The rear of the property abuts Deal Lake. A large, single-family residence is located on adjoining property to the south.

In 2010, plaintiffs submitted an application to the Board for approval to construct a tennis court in the front-yard area of their property. Tennis courts are permitted accessory uses in the R-1 Residential Zone; however, the Borough's zoning ordinance prohibits the construction of tennis courts in "any portion of a front yard." Therefore, plaintiffs required a variance to locate the tennis court in their front yard.

Plaintiffs also required variances from the Borough's side-yard and front-yard setback requirements for the tennis court. The Borough's zoning ordinance provides that a tennis court located in a side yard must be at least fifty feet from the street. The Montagues' proposed tennis court would be located twenty-three feet from the street.

The zoning ordinance further provides that a tennis court cannot be located less than thirty feet from the property's side lot line. The proposed tennis court has a setback of eight feet on the northern lot line, and three feet on the eastern lot line.

In addition, plaintiffs required a variance for their proposed upgrade of their existing driveway. The Borough's zoning ordinance provides that driveways must be located twenty feet from the property's lot lines. The proposed driveway is located fifteen feet from the side yard lot line.

The Board considered plaintiffs' application at a public hearing on May 13, 2010. At the hearing, plaintiffs presented testimony from David H. Boesch (Boesch), a professional engineer; Allison Coffin (Coffin), a professional planner; and Steven M. Chisholm, an arborist. Michael M. Pollack, general manager of the country club, also appeared and supported the application. No member of the public objected to the application.

The Board denied the application, and adopted a resolution dated June 3, 2010, which memorialized its decision. In its resolution, the Board stated that it had considered the testimony, documents and exhibits, and found that plaintiffs had not provided adequate and sufficient credible evidence to satisfy the statutory requirements for the variances they had requested.

Plaintiffs thereupon filed a complaint in the Law Division, seeking reversal of the Board's decision. On August 22, 2011, the trial court entered an order remanding the matter to the Board for adoption of an amended resolution setting forth specific reasons for denial of the application. The Board adopted an amended resolution dated October 6, 2011.

In that resolution, the Board stated that plaintiffs had not presented expert testimony establishing that the tennis court could only be located in the front yard. According to the Board, the testimony merely indicated that the front yard would be a more convenient location for plaintiffs.

In addition, the Board stated that plaintiffs had not presented expert testimony showing that environmental conditions precluded plaintiffs from constructing a tennis court in the rear yard. The Board said that those conditions merely indicated that it was more convenient to locate the tennis court elsewhere on the property. The Board stated that the environmental conditions would be irrelevant but for the fact that plaintiffs had previously constructed an in-ground pool in the rear yard.

The Board also stated that it was not persuaded by plaintiffs' photographic evidence, which showed that tennis courts had been constructed on front and/or side yards elsewhere in the Borough. The Board said that those tennis courts were built before the Borough enacted its ordinance regulating the placement of tennis courts. Furthermore, the Board said that plaintiffs had not presented any evidence indicating that wayward golf balls from the golf course posed a safety hazard, if the tennis court were constructed in proximity to the golf course.

The Board concluded that plaintiffs had not demonstrated that the variances were required due to hardship. The Board found that proposed side setbacks were not reasonable, and that plaintiffs had not shown the benefits to the public good would outweigh the detriments resulting from the variances.

On November 15, 2011, the trial court conducted a trial in the matter and, thereafter, placed its findings of fact and conclusions of law on the record. The court concluded that the Board's denial of plaintiffs' application was arbitrary, capricious and unreasonable. The court entered a final judgment dated December 5, 2011, which reversed the Board's decision and deemed plaintiffs' application approved.

Thereafter, appellants filed a motion in the trial court to intervene for the purposes of appealing from the final judgment. The court entered an order dated January 6, 2012, granting the motion. This appeal followed.

Appellants contend that: (1) the trial court erred by substituting its judgment for that of the Board; (2) the court's decision to grant variance relief pursuant to N.J.S.A. 40:55D-70(c)(1) was erroneous because there is no evidence that plaintiffs' property was uniquely affected by the environmental conditions or by its location on the cul-de-sac; and (3) the court erred by granting variance relief pursuant to N.J.S.A. 40:55D-70(c)(2) because plaintiffs failed to demonstrate that construction of the tennis court as proposed advanced the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, specifically N.J.S.A. 40:55D-1, and would not substantially impair the Borough's zoning ordinance and zone plan.

We have carefully considered the record and conclude that appellants' contentions are without merit. We affirm the trial court's judgment substantially for the reasons stated by the trial judge in the decision she placed on the record on November 15, 2011. R. 2:11-3(e)(1)(A) and (E). We add the following.

A decision of a local zoning board is presumed to be valid and the party attacking the action has the burden of proving otherwise. New York SMSA Ltd. Partnership v. Bernards Twp. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div.) (citing Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965)), certif. denied, 162 N.J. 488 (1999). The court may reverse a decision of a zoning board if it is shown to be arbitrary, capricious or unreasonable. Cell South of NJ, Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (citing Midici v. BPR Co., 107 N.J. 1, 15 (1987)).

Appellants contend that plaintiffs failed to establish grounds for grant of a variance pursuant N.J.S.A. 40:55D-70(c)(1), which states:

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 or exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . .

To obtain a (c)(1) variance, the applicant need not demonstrate that its property would be zoned into inutility without variance relief, but must establish that "'strict enforcement of the zoning ordinance, in view of that property's unique characteristics, imposes a hardship that may inhibit the extent the property can be used.'" Lang v. Bd. of Adj. of N. Caldwell, 160 N.J. 41, 54-55 (1999) (quoting Davis Enterprises v. Karpf, 105 N.J. 476, 493 (1987) (Stein, J., concurring)).

Here, plaintiffs presented sufficient evidence to show that variance relief was warranted because of the exceptional topographic conditions and physical features of the property. Boesch, plaintiff's professional engineer, and Coffin, plaintiff's expert in professional planning, testified that a tennis court could not be located in the rear of the property due to certain physical and environmental conditions, including steep slopes, a wetlands buffer and the flood line. Boesch said that the front/side portion of the property was the only place where the tennis court could be built.

The trial court found that that the Board's rejection of this testimony was arbitrary, capricious and unreasonable. We agree. The testimony established that there were physical and environmental constraints that uniquely affected the property, and strict application of the Borough's zoning ordinance would preclude construction of the tennis court, thereby creating an exceptional and undue hardship to plaintiffs by limiting the extent to which they could use the property.

Appellants nevertheless contend that any hardship resulting from the application of the zoning ordinance was self-created. Appellants maintain that plaintiffs could not obtain (c)(1) relief because the alleged hardship arising from plaintiffs' inability to construct the tennis court in the rear of the property was due to their construction of the swimming pool and patio there.

We note, however, that appellants did not object to plaintiffs' application when it was before the Board, and they never presented any evidence showing that the tennis court could not be located in the rear of the property because of the previously-constructed swimming pool and patio. Plaintiffs maintain that the plans in the record indicate that, even without the patio and pool, there is not enough space to construct the tennis court in the rear of the property, due to the environmental constraints resulting from the proximity to the lake. We are therefore convinced that there was insufficient evidence before the Board to show that the hardship claimed was self-created.

Appellants also contend that plaintiffs failed to establish that their property was uniquely "encumbered" as a result of its location near the lake or the cul-de-sac. They contend that the lake frontage or cul-de-sac do not affect plaintiffs' property differently from their immediate neighbors or other property owners. We disagree. While other property owners may be affected by the environmental conditions resulting from proximity to the lake or by the cul-de-sac, plaintiffs established that these conditions uniquely affected their particular property, and limited their ability to use the property.

Appellants alternatively argue that the Board reasonably determined that plaintiffs had not met the criteria for grant of a variance under N.J.S.A. 40:55D-70(c)(2). Appellants contend that plaintiffs failed to show that the purposes of the MLUL would be advanced by issuance of the variances or that the benefits from the variances would substantially outweigh any detriments.

We are convinced, however, that plaintiffs provided sufficient evidence for the (c)(2) variances. Coffin testified that the proposed tennis court would advance several purposes of the MLUL. The tennis court would allow use of the property for recreational purposes. It would promote a desirable visual environment because of the extensive landscaping that is proposed. In addition, the location of the tennis court in the front yard rather than nearer to the golf course would advance the goal of public safety because users of the court might otherwise be struck with wayward golf balls.

Moreover, the evidence presented by plaintiffs showed that the benefits of deviating from the requirements of the zoning ordinance would substantially outweigh any detriment. Plaintiffs will add extensive landscaping to shield the court from public view, and the tennis court will be built five feet below street level to reduce any noise. Boesch performed a sound study, which showed that there would be minimal noise from the proposed tennis court.

In addition, appellants contend that the trial court erroneously reversed the Board's determination that plaintiffs had satisfied the negative criteria for variance relief under N.J.S.A. 40:55D-70(d). Again, we disagree. Plaintiffs established that the variances will not result in a substantial detriment to the public good, and the variances "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Ibid.

The proposed tennis court will be screened from public view by extensive landscaping, sunk below street level to mitigate the noise and built with improved drainage, thereby lessening any negative impact from placement of the court in the front yard. Furthermore, the grant of the variances will not substantially impair the Borough's zoning plan because, as Boesch testified, other tennis courts are presently located in the Borough's R-1 Residential District, and some are located in the front yard.