KATHRYN MARESCA v. BOARD OF ADJUSTMENT TOWNSHIP OF DENVILLE, BEVERLY THOMPSON et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1716-06T31716-06T3

KATHRYN MARESCA,

Plaintiff-Appellant,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF DENVILLE, BEVERLY

THOMPSON and ROBERT THOMPSON,

Defendants-Respondents.

________________________________________________________________

 

Argued June 6, 2007 - Decided July 25, 2007

Before Judges Parker, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-1511-06.

Bertram J. Latzer argued the cause for appellant.

Larry I. Wiener argued the cause for respondent Board of Adjustment of the Township of Denville (Wiener & McMahon, attorneys; Mr. Wiener and Richard P. Saunders, on the brief).

Theodore E.B. Einhorn argued the cause for respondents Beverly Thompson and Robert Thompson (Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, attorneys; Mr. Einhorn and Jason R. Rittie, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff Kathryn Maresca appeals from an order entered on October 30, 2006 affirming the grant of bulk variances by defendant Denville Township Board of Adjustment (Board) to defendants Beverly and Robert Thompson. We affirm.

This is the second appeal in this case. On June 20, 2005, we reversed and remanded for further findings by the Board because defendants failed to "present sufficient evidence to establish that the location of the deck and the septic system prevented the construction of the addition to the rear of the property;" "[d]efendants also failed to present sufficient evidence to address the negative criteria in N.J.S.A. 40:55D-70(d);" and "[t]he Board made no finding that application of the side[-]yard [setback] restriction created exceptional difficulties or undue hardship."

Although we have detailed the facts in our prior decision, we will summarize them here to give context to our discussion.

Defendants are the owners of certain property at 12 Sleepy Hollow Road in Denville. The property consists of a lot that is 112 feet wide and 145 feet deep, upon which a two-story dwelling was constructed in or around 1950. The property is located in the Township's R-1 zone, which requires a 75-foot front-yard setback and 30-foot side-yard setbacks. Defendants' home is situated 24.21 feet from the south line of their property. Plaintiff's home is the next property to the south. Defendants sought to build an addition to their home, which would extend the home ten feet further [sic] to the south. To construct the addition, defendants require variances to allow a side yard setback on the south side of 14.21 feet and a front yard [setback] of 49.7 feet.

After we remanded the matter, the Board heard the application as a new matter, although defendants had already constructed most of the addition while plaintiff's first appeal was pending. When we reversed, however, the applicants stopped work on the structure, which was 95% completed.

At the remand hearing, defendants explained that they had considered several options before choosing the addition they selected. The defendants proposed adding trees along the property line between their home and plaintiff's property. During the construction, defendants added a drainage pipe along the length of the addition to prevent runoff from flowing onto plaintiff's property. Several residents in the neighborhood testified in support of the application. They indicated that the addition was attractive, that it was largely blocked from the roadway by large trees and that it did not demean the neighborhood in any way. Some of the neighbors commented that the house looked nicer than before and increased the value of the neighboring properties.

The defendants' architect corroborated defendants' representation that the addition they constructed was the only real option open to them. Defendants' expert planner, Michael Spillane, testified that the addition would include new downspouts and an underground system leading to a drywell at the end of the property to capture any runoff. This would improve drainage and control the runoff better than it was before the addition was constructed. He further indicated that the slope from defendants' house to plaintiff's house would be modified with a stone retaining wall, further diminishing runoff to plaintiff's property. In Spillane's expert opinion, the size, shape and topographic conditions of the lot created a hardship requiring the variances to construct a cost-effective addition. In Spillane's opinion, defendants satisfied the negative criteria for a variance under N.J.S.A. 40:55D-70(c)(1) (hardship or (c)(1) variance).

With respect to N.J.S.A. 40:55D-70(c)(2) ((c)(2) variance), Spillane opined that the addition created no negative impact to either the existing zoning ordinance or the neighborhood. The addition, already largely constructed, was not imposing, did not look like a hotel, as plaintiff claimed, and did not intrude on any neighbors' sun, light or air. Rather, the house with the addition conformed to the surrounding neighborhood. Spillane further noted that building up as plaintiff suggested, rather than extending the first floor, would have created more building mass.

Joseph Di Pompeo, plaintiff's structural engineering expert, testified that plaintiff could build a second floor addition, rather than building out, without extensive retrofitting. He maintained that the difference in cost between building a second floor addition or extending the first floor was only about $2,200.

Nancy Socci, plaintiff's expert architect, claimed that a second floor addition was architecturally feasible and could have been built behind the house by removing the existing deck. Socci conceded that the addition, as built, did not look like a hotel and that the removal of the oil tank as a result of the construction constituted a positive improvement.

Plaintiff's son, Thomas Maresca, testified that his mother objected to the addition because it was too close to her house. He claimed that the addition "loomed" over plaintiff's house like a hotel. He further contended that the addition created additional runoff.

After hearing all of the testimony, the Board approved the application and granted the variances. In its resolution, the Board described the history of the application, rejected plaintiff's assertion that defendants' home "was not legally constructed" because it did not conform to the current zoning ordinance; and found Spillane's testimony credible with respect to the (c)(1) variance. The Board concluded that a (c)(1) variance was appropriate given the size, irregular shape and problems created by the setbacks on the lot.

The Board also found that the application satisfied the criteria for a (c)(2) variance because the addition created "an aesthetically pleasing and updated addition to the existing structure." Moreover, the oil tank would be removed and relocated, the drainage system would improve runoff, the retaining wall would modify the steep slope between defendants' and plaintiff's properties, and additional landscaping would be added. In short, the addition benefited the neighborhood and plaintiff's property. The negative criteria were met because the addition did not "loom" over plaintiff's house, adequate air, space and light remained, the addition was not readily visible from the street and there was no extensive damage to any trees between the applicants' and plaintiff's houses.

Plaintiff renewed her complaint in lieu of prerogative writs, seeking to appeal the Board's decision to the Superior Court. Judge Theodore Bozonelis found that the unique circumstances of the property supported a (c)(1) variance and ultimately concluded that the Board's decision in granting (c)(1) and (c)(2) variances to the applicants was appropriate and that the resolution adequately set forth the Board's rationale for granting the variances.

In this appeal, plaintiff argues:

POINT ONE

THE BOARD COMMITTED ERROR WHEN IT DETERMINED THAT ZONING UPGRADES TO ONE ACRE AND LOT WIDTHS TO 175', IN THEMSELVES SATISFIED THE STATUTORY CRITERIA FOR UNIQUENESS N.J.S.A. 40:55D-70c(1)

A. THE ZONING UPGRADES AFFECTED THE ENTIRE NEIGHBORHOOD AND WERE NOT UNIQUE TO THE THOMPSON LOT

B. THERE IS NOTHING EXCEPTIONAL OR UNIQUE ABOUT THE LOCATION OF THE THOMPSON HOUSE THAT WARRANTED A SIDELINE VARIANCE

POINT TWO

TO EXCUSE THE PROPERTY OWNERS FROM HAVING TO PROVE "PECULIAR AND EXCEPTIONAL PRACTICAL DIFFICULTIES OR A HARDSHIP N.J.S.A. 40:55D-70 (C) IS ERROR

POINT THREE

THE APPLICANTS' HOUSE RISES ABOVE THE PLAINTIFF'S PROPERTY, AND THE VARIANCE WILL ONLY AGGRAVATE A CONDITION THAT THE ZONING ORDINANCE INTENDED TO PREVENT

POINT FOUR

THE BOARD MISCONSTRUED THE PURPOSE OF A C(2) VARIANCE BY GRANTING RELIEF WHEN THE BENEFITS RAN ONLY TO A NEIGHBOR AND DID ABSOLUTELY NOTHING TO ADVANCE IMPROVEMENTS TO THE ZONE PLAN OR TO THE COMMUNITY AT LARGE

In her first three points, plaintiff essentially argues that the trial court erred in affirming the Board's grant of a (c)(1) variance to the applicants. We disagree.

A municipal zoning board is entrusted with the sound discretion to determine whether an applicant has met the statutory criteria to obtain a variance. Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 558 (1988); Northeast Towers, Inc. v. Zoning Bd. of Adj., 327 N.J. Super. 476, 494 (App. Div. 2000). It is not our role to determine whether the decision was wise or unwise. Kaufmann, supra, 110 N.J. at 558. Rather, our role is limited to determining whether the Board's decision was reasonably supported by the record. Kramer v. Bd. of Adj., 45 N.J. 268, 285 (1965). The Board's action is presumed to be valid and plaintiff has the burden of proving otherwise. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002); see also New York SMSA Ltd. P'ship v. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999). The Board's decision will not be set aside unless it is arbitrary, capricious or unreasonable. Cell S., supra, 172 N.J. at 81; see also New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999).

N.J.S.A. 40:55D-70(c)(1), the Municipal Land Use Law (MLUL), authorizes a Board of Adjustment to grant variances

[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 . . . 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.

The focus of a (c)(1) variance is not on whether the land's characteristics create a hardship on the owner, but on whether they "present an opportunity for improved zoning and planning that will benefit the community." Menlo Park Plaza Assocs. v. Planning Bd., 316 N.J. Super. 451, 460-61 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). "A variance will not be granted when it is only the purposes of the owner which will be advanced." Id. at 461.

When a (c)(1) variance is sought, the applicant must also satisfy the negative criteria described in N.J.S.A. 40:55D-70(d). That is, no variance will be granted "without a showing that such variance or other relief 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." Lang v. Zoning Bd. of Adj., 160 N.J. 41, 57 (1999); see also Simeone v. Zoning Bd. of Adj., 377 N.J. Super. 417, 426 (App. Div. 2005); Menlo Park, supra, 316 N.J. Super. at 460. The applicant bears the burden of proving by a preponderance of the credible evidence that he or she meets the negative and positive criteria for a variance. Simeone, supra, 377 N.J. Super. at 426.

Here, plaintiff contends that defendants' property was not unique in that several other lots in the neighborhood are undersized. The evidence, however, fully supported the Board's finding that defendants establish "a hardship associated with the extraordinary, exceptional and unusual shape and size of the premises and the lawfully existing structures thereon [and thereby] constitute[d] an affirmative case for a [(c)(1)] hardship variance."

Plaintiff next claims that defendants' house was illegally built and no variances should be granted. The Board rejected that argument and concluded that plaintiff presented no evidence to support her claim that defendants' house never conformed to the zoning ordinance for the area. We agree.

Plaintiff further argues that granting the variances only increased the non-conformity of defendants' side-yard setback and would aggravate conditions caused by the existing topography on Sleepy Hollow Road. We reject that argument, as well. The evidence here demonstrates that the requested variances are compatible with the zone and that the addition, 95% complete, added to, rather than subtracted from, the neighborhood. See Stop & Shop v. Bd. of Adj., 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000). Variances are granted to accommodate the needs of individual property owners who require relief from restrictions otherwise applicable to the zone, so long as no harm is done to the surrounding area. Ibid.

Plaintiff claims that the addition is "overbearing" and looms over her house like a hotel. The evidence, particularly the testimony of the neighbors, along with the photographs of the almost-completed addition, belie plaintiff's claim. Indeed, plaintiff's own architect conceded that the addition did not loom over plaintiff's home like a hotel.

Plaintiff next contends that the Board granted the variances without requiring the applicants to prove "peculiar and exceptional difficulties" or "exceptional and unique hardship," as required for a (c)(1) variance. Plaintiff continues to argue that the applicants could have built a second floor addition, rather than extending the first floor.

The evidence indicates that, although the applicants had several options, the one ultimately chosen was the most feasible, and it satisfied all of the statutory criteria. While cost is not a paramount factor, it is a relevant consideration. The location of the existing septic system, the size, shape and topography of the property warranted the first floor addition.

In her fourth point, plaintiff argues that the Board misconstrued the purpose of a (c)(2) variance because the benefit of the proposed addition did nothing to improve the relevant zone plan or the community. N.J.S.A. 40:55D-70(c)(2) authorizes the Board to grant a bulk variance "where . . . the purpose of [the MLUL] would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment." A (c)(2) variance, unlike a (c)(1) variance, does not require a showing of undue hardship. Rather, a (c)(2) variance can be granted only if it advances the purpose of the MLUL and actually benefits the community. Such a variance cannot be granted solely to advance the needs of the property owner. Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 122 (App. Div. 2000). The focus is not on the characteristics of the land that create a hardship, but rather on the characteristics of the land that prevent an opportunity for improved zoning and planning. Id. at 122-23.

In granting the (c)(2) variance, the Board found "that the affirmative proofs for [the (c)(2)] variance have been posited by [defendants' expert Spillane]." The Board took note of conflicting testimony from plaintiff's experts, and concluded that even plaintiff's expert's comments did not conclude that the application was "unreasonable, out of character, or the creation of a structure that was not consistent with the R-1 zone." For example, plaintiff's architect conceded that the addition did not impact on available air, light and space, nor did it loom over plaintiff's property.

Finally, the Board noted that the benefits provided by the construction of the addition, including improved drainage, repair of a retaining wall, added landscape, buffering, removal of the oil tank, and an overall "[a]esthetic upgrade to the applicants' house."

We have carefully considered the record in this matter in light of plaintiff's arguments and the applicable law. We are satisfied that the Board did not act arbitrarily, capriciously or unreasonably, and that the Board's decision, as well as Judge Bozanelis's, is more than adequately supported by credible evidence in the record. R. 2:11-3(e)(1)(A); see also Cell S., supra, 172 N.J. at 81; Kramer, supra, 145 N.J. at 285 (1965).

 
Affirmed.

(continued)

(continued)

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A-1716-06T3

July 25, 2007