F.R. JACOBSON ENTERPRISES, INC. v. BOARD OF ADJUSTMENT TOWNSHIP OF EDISON et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4603-05T54603-05T5

F.R. JACOBSON ENTERPRISES,

INC.,

Plaintiff-Appellant,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF EDISON and MAYOR

AND COUNCIL OF THE TOWNSHIP

OF EDISON,

Defendant-Respondent.

________________________________

 

Submitted: October 17, 2006 - Decided November 3, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7969-04.

Lum, Danzis, Drasco & Positan, attorneys for appellant (Dennis J. Drasco, of counsel and on the brief; Kevin J. O'Connor, on the brief).

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys for respondent (Jeffrey B. Lehrer, of counsel; Michael V. Cresitello, Jr., on the brief).

PER CURIAM

Plaintiff F.R. Jacobson Enterprises, Inc. appeals from the Law Division's December 2, 2005 order affirming the decision of the Edison Township Zoning Board of Adjustment (Board), denying his application for numerous bulk variances under N.J.S.A. 40:55D-70c, in connection with the proposed construction of an oversized house on an undersized lot, and denial of the March 31, 2006 motion for reconsideration.

Appellant asserts the following arguments on appeal:

POINT I

THE COURT'S DECEMBER 2, 2005 ORDER IS INTERLOCUTORY, NOT A FINAL JUDGMENT AND IS SUBJECT TO RECONSIDERATION AT ANY TIME PRIOR TO ENTRY OF FINAL JUDGMENT.

A. The December 2, 2005 Order Did Not Resolve All Issues As to All Parties.

B. If, Arguendo, An Order Adjudicating the Bifurcated Prerogative Writ[s] Claim Is Deemed a "Final Judgment," Such Order Should Be Applied Prospectively And Plaintiff Should be Permitted to Appeal From the Trial Court's December 2, 2005 Order Nunc Pro Tunc.

POINT II

THE TRIAL COURT SHOULD HAVE RECONSIDERED AND REVERSED ITS AFFIRMANCE OF THE BOARD'S DENIAL OF THE VARIANCE SOUGHT BY PLAINTIFF.

A. The Trial Court Erroneously Applied Standards For Use Variances To Plaintiff's Application For Bulk Variances.

B. The Record Establishes Plaintiff's Entitlement to Variances For Its Isolated Lot And The Board Arbitrarily And Unreasonably Rejected Plaintiff's Application.

1. Plaintiff Satisfied The Positive Criteria.

2. Plaintiff Satisfied the Negative Criteria.

C. The Trial Court Failed To Consider That Denial Of The Variances Would Result In A Taking of Plaintiff's Property.

We affirm.

I.

Appellant acquired the property located at 891 Ellis Parkway for about $1500 by foreclosure of a tax sale certificate dated September 14, 1992. The vacant parcel is 25 feet by 100 feet, with a total area of 2500 square feet. The property is located in the RBB Single-Family Residential Zone of the Township of Edison. The Ordinance requirements for that zone provide for a minimum lot area of 10,000 square feet and a minimum lot width of 85 feet.

In 2004 appellant filed an application with the Board to construct a two-floor 1600 square foot single family residence on the property, and sought bulk variances pursuant to N.J.S.A. 40:55D-70c for lot size, lot width, setbacks and lot coverage as follows:

Description Required Proposed

Lot width 85 ft. 25 ft.

Lot size 10,000 s.f. 2500 s.f.

1 Side Yard 10 ft. 3.1 ft.

Total Side Yds. 25 ft. 6.2 ft.

Max. Lot Coverage 20% 33.9%

Max. Lot Coverage

for Bldg & Pavement 40% 43.9%

At the hearing before the Board on June 29, 2004, Martin testified, and presented the testimony of Geoffrey Whitman, the contract purchaser of the property, and Roger DeNiscia, a professional planner. Several objectors, many of whom were neighbors, testified in opposition to the variance application.

Martin testified that a title search revealed his predecessor in title had acquired the property by deed in 1940, and that it had been created in 1926 as part of a subdivision. Martin was unaware of the zoning requirements of the property in 1926, 1940, or when he purchased it in 1992. He had intended to sell the property for development purposes.

In support of appellant's claim that it attempted to acquire adjacent property or offer to sell its non-conforming property to adjacent owners, Martin produced and testified that he sent the following letter to mayor and council on April 4, 1997, to which he received no response:

My client seeks to purchase the [adjacent] Township lot[] for the purpose of dividing [it] with its lot[] for the [purpose] of development. Would you be kind enough to give this matter your attention and advise in the event that the Township does not wish to sell its lots. Then my client would be willing to sell or exchange its lots.

Martin also testified he had a conversation with the Tax Collector Gary Hardich in 1997, about "what [he] could do to buy or work out something with the Township with this contiguous property." Appellant's attorney read into the record a letter he sent to mayor and council on April 5, 2004, advising that his client wished to construct a single-family home on the undersized lot and was "interested in purchasing some or all of the contiguous borough-owned property" and asking if the township was "interested in selling its contiguous property . . . [or] in buying [his] client's lots." Appellant's counsel informed the Board there had been no response from township officials.

At the adjourned hearing on August 17, 2004, Martin testified that in the interim he had telephoned the mayor's office and had been informed that "the Township has a policy that it will not sell any of its vacant property to adjoining owners of [undersized] lots."

Whitman, a builder, had a contract to purchase the subject parcel for $90,000, contingent on appellant obtaining the requested variances.

DeNiscia, appellant's planner, expressed the opinion that over the years many of the subdivision lots were merged to create larger lots for houses, leaving appellant's lot isolated and restricted to its current size. He believed strict enforcement of the current zoning requirements would effectively preclude development of the property. The planner suggested that a small two-bedroom residence would serve the housing needs of an elderly couple. DeNiscia acknowledged he was unaware of any other house built on a 25 foot-wide lot in Edison. He opined, however, that granting the variance would not be detrimental to the neighborhood because the proposed use, a single-family residence, was permitted and predominant in the area and contended the house was scaled to fit the specific lot size. DeNiscia also claimed there would be adequate distance between the proposed house and the neighbor's house, and there would be no adverse impact on the adjacent township-owned lot, which was vacant.

The objectors stated that most of the lots in the vicinity of appellant's parcel had frontage of 85 to 100 feet. Their overriding objection to the variance application was that placing a residence as proposed by appellant (a two-story single-family dwelling about 18-feet wide) on the 25-foot wide undersized lot would be aesthetically unpleasing and completely out of character with the neighborhood.

Following the August 17, 2004 hearing, the Board unanimously denied the variance, memorialized in a resolution dated October 19, 2004. Appellant filed a complaint in lieu of prerogative writs, challenging as arbitrary and capricious the Board's denial of its variance application (first count) and asserting a claim against Mayor and Council of the Township of Edison for inverse condemnation (second count). By case management order of September 14, 2005, the Law Division judge bifurcated the matter, with de novo review of the Board's determination to proceed first. In a decision and order dated December 2, 2005, the Law Division judge upheld the Board's decision denying appellant's bulk variance application.

On February 23, 2006, appellant filed a motion for reconsideration. The trial court found the December 2, 2005 order was a final judgment and not interlocutory, and thus the motion had not been timely filed. R. 4:49-2. Nonetheless, the court concluded that reconsideration was not warranted on the merits, and denied the motion by order of March 31, 2006. Appellant filed a motion for leave to appeal, which by order of May 10, 2006, we treated as a notice of appeal, while ruling that the December 2, 2005 court "decision/order" was a final order.

II.

The December 2, 2005 order of the Law Division, upholding the Board's denial of appellant's variance, was a final judgment as to the Board. Appellant's inverse condemnation count, which was bifurcated at the outset of the litigation, was an alternative means of relief in the form of an entirely separate cause of action against the Township, a separate legal entity. Thus, appellant's motion for reconsideration, which was filed beyond the twenty-day deadline, R. 4:49-2, was untimely, as was the ensuing appeal.

Even if timely, the appeal is lacking in merit. We note at the outset that our scope of review is limited. A reviewing court accords deference to the expertise and broad discretion of a municipal board, reversing only if the municipal action is arbitrary, capricious or unreasonable. Cell South of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998); Kramer v. Bd. of Adj., 45 N.J. 268, 296-97 (1965). Applying this standard, our review of the record compels us to conclude that the Board's decision was well within the bounds of its authority. The Board properly analyzed the statutory criteria and case law pertaining to bulk variances and there is more than ample support in the record for its findings.

The Municipal Land Use Law (MLUL) authorizes bulk variances, i.e., permission to deviate from municipal zoning governing the necessary lot size, coverage and setbacks, based upon proof of undue hardship or benefits outweighing any public detriment. N.J.S.A. 40:55D-70c. Dallmeyer v. Lacey Township Bd. of Adj., 219 N.J. Super. 134 (Law Div. 1987) provides guidance concerning the law that governs a zoning board's power to grant bulk variances in the "isolated lot" cases.

The obligations of an applicant under N.J.S.A. 40:55D-70c(1) include:

(1) Demonstrating efforts to comply with the zoning ordinance by attempting to acquire adjacent property or offer to sell the non-conforming property to adjacent owners for a fair and reasonable price;

(2) Carrying the burden of proof as to both the positive criteria, i.e., showing that, due to "an extraordinary or exceptional situation uniquely affecting a specific piece of property," failure to grant the variance will result in undue hardship to the developer of the property, and the negative criteria, i.e., that granting the variance will not result in a "substantial detriment to the public good and will not substantially impair the intent and purpose of the zoning plan and zoning ordinance";

(3) Demonstrating, if possible, an attempt to comply with the use, side yard and set back requirements and setting forth the locations of other houses on similar sized tracts of land; and

(4) Demonstrating that the proposed use of the land does not violate any traditional zoning purposes such as light, air and open space.

[Id. at 146.]

The Board gave appellant the benefit of the doubt as to the efforts he made to attempt to acquire adjacent property or by offering to sell his non-conforming property to the Township and found he may have adequately demonstrated the positive criteria of "undue hardship." Like the Law Division judge, we believe appellant's proofs in this regard fall far short of a good faith effort required under the case law. Appellant's two letters and brief conversations with Township officials are vague, general inquiries that contain no terms whatsoever or reference any price, let alone a "fair and reasonable price." See Commons v. Westwood Zoning Bd., 81 N.J. 597, 606 (1980); Dallmeyer, supra, 219 N.J. Super. at 139.

We are in accord, however, with the Board's findings that appellant failed to satisfy the negative criteria analysis under the MLUL. The record clearly supports the sentiment of the Board, contained in its Resolution, that "a significant number of variances associated with this application do not meet the intent and purpose of the Township's Master Plan and Ordinance" and that "the detriments associated with the grant of these variances would substantially outweigh any benefits . . . by allowing the Applicant to place a significantly out of character dwelling on a significantly out of character lot."

We affirm substantially for the reasons set forth in the Resolution, which states, in pertinent part:

21. The Board finds and concludes that grant of any of the variances associated with this application would negatively impact the surrounding community. In fact, the subject Property is so significantly out of character with the surrounding community that to approve the substantial number of variances involved would be tantamount to a rezoning of the Property.

22. [I]t appears . . . that this is the only 25 ft. lot in existence in the entire area. In fact, the Board is unaware of any other lot in the entire Township which is this small. Certainly, the Board cannot countenance a single family dwelling on such a substandard lot, and one which is entirely out of character with the surrounding community.

23. The Applicant provided no testimony as to the zoning in effect at the time that the Applicant purchased the Property or in l940 when the Applicant's predecessor in interest acquired the subject Property. . . . Mr. Martin . . . confirmed to the Board during his testimony that he was unaware of the zoning [when he purchased the property at tax sale]. It seems disingenuous for the Applicant to argue that he is entitled to variance relief at this time when he did not conduct an appropriate and bona fide investigation of the subject Property before purchasing it . . . . In this regard, while the subject Property may have been an appropriate and legal tax lot, it certainly was not a valid "building lot" to allow the Applicant to construct a dwelling thereon without need for a substantial number of variances.

24. [T]he applicant has failed to demonstrate that the grant of the substantial number of variances required would not violate any traditional zoning purposes such as light, air and open space. To the contrary, the placement of a two-story single family dwelling only 18 ft. in width on a 25ft. wide lot would be entirely out of character with the surrounding community and may, in fact, be entirely contrary to any residential zone within the Township of Edison.

. . . .

26. The Board finds and concludes that the requested variances cannot be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Township's Master Plan and Ordinance.

Affirmed.

 

At the close of the hearing, prior to the vote, appellant agreed to delete the garage from the plans and reduce the size of the residence to 1000 square feet.

(continued)

(continued)

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A-4603-05T5

November 3, 2006