GEORGE MARTIN et al. v. BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0053-06T30053-06T3

GEORGE MARTIN and

JUDITH MARTIN,

Plaintiffs-Appellants,

v.

BOARD OF ADJUSTMENT OF

THE BOROUGH OF PARAMUS,

ROBERT JANKOWSKI and

ELIZABETH JANKOWSKI,

Defendants-Respondents.

_______________________________________________________________

 

Submitted May 16, 2007 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2604-06.

Lum, Drasco & Positan, attorneys for appellants George Martin and Judith Martin (Dennis J. Drasco, of counsel; Mr. Drasco and Kevin J. O'Connor, on the brief).

John E. Ten Hoeve, Jr., attorney for respondent Board of Adjustment of the Borough of Paramus.

Wells, Jaworski & Liebman, attorneys for respondents Robert Jankowski and Elizabeth Jankowski (Darrell M. Felsenstein and James J. Delia, on the brief).

PER CURIAM

Plaintiffs George and Judith Martin appeal the trial judge's July 27, 2006, order that: 1) reversed the grant of variances by defendant Board of Adjustment of the Borough of Paramus (the Board) to defendants Robert and Elizabeth Jankowski (defendants); and 2) remanded the matter to the Board, allowing the defendants to submit an "entirely new application . . . seeking the relief which was the subject of the [] litigation." These are the salient facts that gave rise to the dispute.

Defendants own property located at 535 Coolidge Place, Paramus, which is an irregularly-shaped lot located in a residential zone. Robert Jankowski is a builder and constructed the rear addition, deck and bay window that are the subjects of the dispute. Plaintiffs own the property next door.

In 1998, defendants sought and received a variance from the Board in order to construct an addition to their house. At the time, the zone restrictions required a thirty-foot rear yard setback and an eight-foot side yard setback. In support of the application, defendants submitted plans showing the addition to be twenty-three feet from the property's rear line and nine feet from the side yard lot line defendants share with plaintiffs. They therefore did not seek any variance from the zone's side yard setback restrictions.

The variance was granted and, as a condition, defendants were required to plant an evergreen buffer between the addition to be constructed and plaintiffs' property. It is undisputed that defendants never planted the landscaping until sometime immediately before their 2006 variance application which is the subject of this lawsuit. When constructed, the addition was twenty-seven feet from the rear lot line; however, it was also 7.2 feet from the side yard lot line.

In 2000, defendants constructed a deck on the rear of the house. They never sought a variance because they intended to construct the deck with the appropriate twenty-foot setback from the rear property line required for open decks in the zone. When actually constructed, the deck was only 19.6 feet from the rear yard lot line.

In October 2005, defendants applied for a construction permit to build a bay window on the side of their house that faces plaintiffs' property. The zoning ordinance, recently amended, increased the side yard set back in the zone to ten feet. In their plans, defendants represented the window addition was twenty-inches and did not encroach upon the side yard set back. In fact, defendants installed a larger window than shown on the plans and it is 8.2 feet from plaintiffs' lot line at its closest point.

The municipal building department advised defendants that variances were needed for the deck and window. On February 2, 2006, defendants applied to the Board for the side yard and rear yard variances, and a public hearing was held on February 16, 2006. Robert Jankowski was the only witness called in support of the application. Essentially, he testified that the dimensions of the various improvements were minor mistakes that resulted in minimal incursions into the rear and side yard setback requirements. Defendants introduced a new survey, prepared that day, which showed the "as-built" addition and bay window in relation to the lot lines. The new survey demonstrated that the bay window encroached less than originally thought into the side yard setback.

Plaintiff, George Martin, who is an attorney-at-law, appeared as an objector and cross-examined defendant. At one point, plaintiff began to question defendant about the earlier applications he made for the 1998 variance and the building permits, attempting to show defendant's continued violation of the zoning ordinance.

[Plaintiff]: Mr. Chairman, I wanted to ask [defendant] about the violations of the zoning ordinance that he has committed, not pertaining to this variance, and you refused to allow me to do so. I wanted to point out that he violated [the ordinance] willy-nilly.

[Chairman]: I think you've made that point in your statement and that's as far as it can go. [] [T]he questions are limited to the testimony that's been given on this application. Other things that may have gone on in his property are not part of this case this evening.

After plaintiff's continued attempts to question defendant about the prior applications, the Board's attorney asked plaintiff,

[Board counsel]: I understand what you're trying to do. You're trying to establish that [defendant] said he was going to build the deck at 20 feet and actually built it at 19.6 feet, said he was going to build an addition that required a 23-foot rear variance and no sideyard variance, but it actually encroaches because it's only 7.02 feet from the sideyard. Showed a plan that didn't show the bay window, that he has now, and indicated in a plan . . . that the window was going to be 10 feet from the sideline when it's actually 8.02 feet from the sideline. Isn't that what you're trying to show?

[Plaintiff]: Yes, sir.

[Board counsel]: [Defendant has] testified and he's acknowledged all those things. He's testified directly that all those things are true.

Both plaintiffs testified in opposition to the request. They argued defendants had continuously violated the requirements of the zoning ordinance and failed to abide by the prior 1998 approval because they neglected to plant the landscape buffer required by the Board.

The Board voted 7-0 to approve defendants' requested variances and set forth its findings and conclusions in a memorializing resolution dated March 9, 2006. The Board found that defendants "ha[d] made repeated errors or misrepresentations with respect to location of improvements to the property," but, that "the encroachments [were] de minimis" and "exist[ed] only as to small corners of the existing improvements." The resolution then contained the following findings and conclusions of the Board:

9. Moreover, the Board finds that had the [defendants] sought variances for the existing encroachments prior to constructing the improvements, said variances would have been granted. The [defendants'] lot is very unique in its shape. The location of the existing dwelling renders it difficult to construct improvements in strict compliance with the zoning requirements. In addition, the improvements result in benefits as defined by the Municipal Land Use Law. The deck provides an area for the [defendants] to enjoy an open, outdoor area. The bay window provides the [defendants] with additional light and air. The addition provides the [defendants] with added living space in a small dwelling.

10. It is also abundantly clear that the benefits derived from these improvements vastly outweigh any detriment flowing from the existing encroachments. The Board finds that there is no detriment resulting from the encroachments, let alone the substantial detriment that would be required to deny the requested variances. The encroachments are extremely minimal and have no detrimental impact on the zone plan . . . or the neighborhood.

11. The Board concludes that the [defendants] [have] satisfied [their] burden both under the traditional hardship considerations of the Municipal Land Use Law as well as the flexible (c) provisions of the Municipal Land Use Law. [Defendants have] satisfied both the positive and negative criteria as outlined above. The encroachments are also so de minimis as to be of no impact.

The Board conditioned its approval upon the defendants planting of an appropriate landscape buffer between the bay window and plaintiffs' property.

Plaintiffs filed this action in lieu of prerogative writs seeking 1) to void the grant of the variances, 2) the removal of all encroachments, 3) compliance with the 1998 variance conditions relating to the landscape buffer, and 4) compensatory and punitive damages. On June 13, 2006, the trial judge bifurcated plaintiff's claims and ordered those claims seeking review of the Board's actions to be tried first.

At trial, plaintiffs contended the grant of the variances was improper under either N.J.S.A. 40:55D-70c(1) -- the so-called "hardship" variance -- or N.J.S.A. 40:55D-70c(2) -- the so-called "flexible c" variance. Plaintiffs argued that any hardship to defendants caused by the shape of the property or the existing structure was self-induced because they chose to construct the improvements without seeking the appropriate variances first. They further contended that the improvements only benefited defendants and therefore did not serve any of the general purposes of the zoning ordinance. Plaintiffs also objected to the manner in which the hearing was conducted, specifically the late admission of the survey, the restrictions placed upon the cross-examination of defendant, and the leading questions posed to defendant by his counsel during direct examination.

The trial judge agreed that the Board restricted the introduction and consideration of relevant evidence. He noted that defendants' credibility was at issue and that the Board chairman improperly limited cross-examination. The judge also found the Board's consideration of the late survey denied plaintiffs an opportunity to rebut its contents.

The judge concluded that despite defendants' construction of the improvements in violation of the setback requirements, the Board was nonetheless free to grant a variance under c(1) based upon the unique features of the property and the existing structure. Because of the procedural improprieties, however, he determined the matter had to be remanded to permit plaintiffs a fair hearing before the Board.

The judge also decided the Board's grant of a c(2) variance was arbitrary, capricious and unreasonable because the improvements "only advance[d] the interests of the [defendants]." However, because he viewed his decision to be based upon "due process ground[s]," the judge concluded res judicata did not apply. He therefore permitted defendants on remand to "present proofs, maybe better proofs, to support a c(2)" and noted "the [B]oard might very well agree with those proofs." The judge dismissed the balance of plaintiffs' complaint without prejudice. This appeal ensued.

Plaintiffs argue that defendants failed to produce sufficient evidence before the Board to justify the grant of the requested variances under either N.J.S.A. 40:55D-70c(1) or (2). They contend the trial judge should have granted judgment in their favor and not have remanded the matter to the Board for a completely new hearing at which defendants could submit additional evidence.

Defendants argue plaintiffs have not been aggrieved as a result of the trial judge's decision since they can challenge any future application presumably without the procedural constraints improperly imposed at the first hearing. While not conceding that a remand was necessary, defendants and the Board contend the trial judge correctly determined the Board could properly grant a c(1) hardship variance despite defendants' admitted construction of the improvements in violation of the zone's restrictions, and correctly determined that defendants should be permitted to re-litigate their request for a c(2) variance.

We have carefully considered these contentions in light of the record and applicable legal standards. We reverse the trial judge's order remanding the matter to the Board. Furthermore, we conclude that the Board's decision to grant defendants' variance applications was arbitrary, capricious and unreasonable.

Initially, we reject the notion that plaintiffs' appeal should be dismissed because they have not been aggrieved by the trial judge's decision. A party is considered to be aggrieved when their "personal or pecuniary interest or property right [has been] adversely affected by the judgment in question." Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961). "[O]nly a party aggrieved by a judgment may appeal from it." Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993).

Here, plaintiffs sought to have the trial judge set aside the Board's grant of variances to defendants. As a result of the judge's decision, however, plaintiffs did not receive that relief, and, instead, face the prospect of another hearing before the Board at which time defendants will be permitted to present their evidence anew. Plaintiffs have been aggrieved by the trial court's judgment and therefore their appeal is cognizable.

Furthermore, while we appreciate the judge's concern that plaintiffs were denied adequate procedural due process because cross-examination of defendant was unfairly limited and evidence was admitted despite its untimely production, we disagree with his decision to remand the matter to the Board. Since these procedural improprieties clearly inured to defendants' benefit, a remand would be appropriate only if defendants' proofs were sufficient to sustain their burden at the hearing. We conclude, however, that defendants failed to present sufficient evidence to justify the grant of the variances, and, therefore, a remand to the Board is unnecessary.

We begin our review by recognizing the standards that guide our consideration. "When reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Prop. L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Because of its "peculiar knowledge of local conditions," the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107 N.J. 1, 23 (1987)); see also Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). The deference accorded to the board's denial of a variance is greater than that given to its grant of a variance. Med. Ctr. v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 199 (2001). On the other hand, the Board's conclusions of law are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Adams v. DelMonte, 309 N.J. Super. 572, 583 (App. Div. 1998).

N.J.S.A. 40:55D-70c(1) provides that a zoning board of adjustment may

[w]here: (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) provides in pertinent part that a zoning board of adjustment may

where in an application or appeal relating to a specific piece of property 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, grant a variance to allow departure from regulations pursuant to article 8 of this act.

Under either subsection of the statute, a successful applicant must also demonstrate "that such variance . . . can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance" -- the so-called negative criteria. N.J.S.A. 40:55D-70.

"[P]roof of the 'positive criteria,'" in a c(1) variance case is "predicated on 'exceptional and undue hardship' because of the exceptional shape and size of the lot." Bressman v. Gash, 131 N.J. 517, 523 (1993). "[T]he need for the variance" must be "occasioned by the unique condition of the property" which in turn "constitutes the basis of the claim of hardship." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 56 (1999).

As in any variance request, defendants, as applicants, bore the burden of demonstrating exactly what created the hardship justifying the grant of a c(1) variance. See Cox, N.J. Zoning and Land Use Administration, 6-2.9 at 133 (2006). Here, defendants argued that the bay window and rear deck were de minimis encroachments occasioned, at least with respect to the window, by the trapezoidal shape of the property and their existing home.

We fail to discern how the shape of the property was so exceptional that it created the hardship from which defendants seek relief. With each improvement they made -- the addition, the deck, and the bay window -- defendants represented that they intended to construct something that did not require any variance. In other words, defendants themselves never claimed that the "exceptional shape" of their property, or "the structure[] lawfully existing" on the property -- their house -- caused "an extraordinary and exceptional situation" that created an undue hardship. Only the construction of the various improvements in contravention of the zoning requirements created a condition that necessitated the extraordinary relief of a variance.

In Deer-Glen Estates v. Bd. of Adjustment, 39 N.J. Super. 380, 382 (App. Div. 1956), we considered the appropriateness of a hardship variance in circumstances strikingly similar to those at hand. There, the applicants applied for and received building permits because their construction plans, as submitted, met all the setback requirements. However, after construction began, the applicant modified the plans resulting in an encroachment of the side yard setback requirement by eleven inches. Ibid. The Board of Adjustment denied the requested variance, and the Law Division reversed. Id. at 383. We reinstated the Board's denial. Id. at 387.

We noted that plaintiff sought relief from a hardship "brought about by its own act or omission." Id. at 385. We also concluded that plaintiff had "no right to build" based upon plans that were "different from that which it filed" when it sought its permit, and that plaintiff's problems arose "through sheer negligence, accompanied by flagrant violation of the zoning ordinance requirements." Ibid. Lastly, we noted that the small size of the encroachment, eleven inches, could not be the basis for relief because it begs the question "where will the line be drawn?" Id. at 386.

The essential holding in Deer-Glen, that a self-induced hardship is not sufficient for the granting of a variance under N.J.S.A. 40:55D-70c(1), was reaffirmed by the Supreme Court in Place v. Bd. of Adjustment, 42 N.J. 324 (1964). There, the Court held that the requested variance for an as-built shelter that mistakenly encroached upon a setback was the result of the owner's self-induced hardship and was unrelated to the physical characteristics of the property; as such, the hardship was insufficient for the grant of a variance. Id. at 331-332.

The Board's conclusion that the encroachments were de minimis is only relevant on the issue of defendants' satisfaction of the negative criteria. It does not support the finding of a hardship in the first instance, and, therefore, is of no moment to our consideration of whether defendants proved the positive criteria essential to the grant of a c(1) variance.

The trial judge concluded that the Board could avoid the strictures of Deer-Glen's holding by "obviat[ing] and eliminat[ing] the self-created nature of the hardship," -- that is, consider the merits of the variance request as if it was made before the improvements were built. In certain cases, that might be appropriate. However, in this case, where defendants' repeated submissions demonstrated an intention to construct improvements that did not require any variances because of hardships caused by the characteristics of the lot or existing structures, speculation as to how the Board might have ruled if the improvements had not actually been constructed is inappropriate. We conclude, therefore, that any grant by the Board of the variances pursuant to c(1), under the facts presented, was arbitrary, capricious and unreasonable.

We agree with the trial judge's conclusion that defendants failed to produce sufficient evidence to support the grant of a variance under subsection c(2). As the Supreme Court noted in Kaufmann v. Planning Bd. of Warren,

By definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, 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.

[ 110 N.J. 551, 563 (1988).]

Defendants did not introduce any evidence, and the Board did not make any findings, that support the conclusion that defendants' deck, rear addition, or bay window benefited the surrounding community. All the evidence and all the conclusions reached by the Board essentially related to the benefits these improvements provided to defendants alone. As such, the grant of a variance under this subsection was arbitrary, capricious and unreasonable.

In sum, we conclude that the trial judge's decision to remand the matter to the Board based upon procedural deficiencies that inured only to defendants' benefit was inappropriate because the evidence produced by defendants was insufficient as a matter of law to support the grant of variances under N.J.S.A. 40:55D-70c(1) and (2). We reverse and remand to the trial court for the entry of an order vacating the Board's resolution granting defendants' variance application. We do not retain jurisdiction.

 
Reversed and remanded.

The notice did not mention the side-yard setback violation occasioned by the rear addition to the house.

The transcript of the proceeding erroneously attributes this answer to defendant.

We need not consider whether the dismissal without prejudice of the balance of the complaint was appealable as a final judgment or order since no party has raised that issue.

(continued)

(continued)

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A-0053-06T3

July 5, 2007