JOSEPH DEVITO v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLETOWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1416-09T1

JOSEPH DEVITO,

Plaintiff-Respondent,

v.

THE ZONING BOARD OF

ADJUSTMENT OF THE

TOWNSHIP OF MIDDLETOWN,

Defendant-Appellant.

_______________________________________

December 9, 2010

Argued October 4, 2010 Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1246-09PW.

Gregory W. Vella argued the cause for appellant (Collins, Vella & Casello, attorneys; Mr. Vella, of counsel; Matthew K. Kalwinsky, on the brief).

Larry S. Loigman argued the cause for respondent.

PER CURIAM

The Zoning Board of Adjustment of the Township of Middletown (Board) appeals from the judgment in favor of Joseph DeVito, setting aside the Board's denial of DeVito's application for a variance. We reverse.

DeVito is the owner of a single-family dwelling in Middletown. The property is triangular in shape and about one hundred feet by sixty feet, fronting on both Oregon and Jersey Avenues. The house is only five feet from each property line. The property is in the R-7 residential zone. However, the opposite side of Jersey Avenue is in the commercial B-2 zone.

Without seeking any approval, DeVito removed an existing dilapidated six-foot stockade fence and replaced it with a new six-foot, opaque white vinyl fence, which runs approximately ninety feet along Oregon Avenue and sixty feet along Jersey Avenue. Low-hanging utility wires make it impractical to use trees for screening.

Middletown Ordinance 16 6.16(A)(1), states: "Fences, which are not open fences as defined in this Chapter, located in a required front, street side or street rear yard, shall not exceed thirty-six [36"] inches in height." Ibid. Therefore, DeVito's new fence was no longer an existing non-conforming use nor in compliance with the ordinance.

DeVito filed pro se an application with the Board, which held a hearing. DeVito testified at the hearing that the size and shape of his lot did not allow for screen plantings. His neighbors had complained about the old fence and asked him to replace it. In support of his application, DeVito submitted exhibits, including photographs of: the old stockade fence; the new fence; existing fences on his neighbors properties; and a survey of his lot.

DeVito noted that the front side of the house on Jersey Avenue is not conducive to planting trees due to low hanging power lines near the property. He also pointed out similar six-foot white vinyl fences on his neighbors' properties, and noted the prevalence of these types of fences in his neighborhood. He asserted that modifying the new fence to comply with the zoning ordinance and planting shrubs to accomplish the goal of screening the yard would cost him approximately $15,000. He also asserted that without the fence, his property would probably depreciate by $50,000.

Christie Hartford, apparently a resident of DeVito's household, testified that the fence has helped to alleviate security concerns. She had seen "kids jumping up trying to look into the yard" and "hanging out" near the fence.

The Board denied the application and issued a memorializing resolution, which found in pertinent part:

The purpose of [Ordinance 16 6.16(A)(1)] is to eliminate fences that are over three (3) feet and solid from being installed on street frontage. The intent of this ordinance is to eliminate the 'Tunneling' effect caused by fences along street frontage. The ordinance was adopted to prohibit the negative visual effect of fences along street frontage because they make the road look like a tunnel. Here, the applicant is proposing approximately ninety (90) feet of fencing along Oregon Avenue and sixty (60) feet of fencing along Jersey Avenue. Vehicles traveling on both roads will only see fencing along the street, rather then open front yards. This is the effect that the ordinance was intended to prohibit.

[Although] the subject property is unique in shape, in that it is triangular, the property is not unique simply because it has two street frontages. All corner lots have two street frontages. The applicant proposes to construct [a] six (6) foot solid stockade fence along the property lines that fronts the street, which is no different then any of the other corner lot in [Middletown]. Further, the applicant's proposal is a substantial detriment to the Zoning Plan and Zoning Ordinances. Granting this variance would undermine the intent and purpose of the ordinance. As a result, the Board finds that the applicant's proposal is a substantial detriment to the Zoning Plan and Zoning Ordinances of [Middletown]. As such, the applicant has failed to satisfy the positive and negative criteria and the application must be denied. The applicant has the ability to install fencing along the property line that is permitted by ordinance. There is no detriment to the applicant complying with the Township requirements.

DeVito, represented by counsel, filed an action in lieu of prerogative writs. At oral argument, DeVito's counsel argued that the Law Division should overturn the Board's denial of the application because it was arbitrary, capricious or unreasonable. He focused on: the unusual triangular shape of the lot; the lot fronting on two streets; and its proximity to the highway and commercial property. DeVito argued the need to be screened from the traffic and the commercial properties in the area. Once again, he argued that due to the prevalence of fences in the neighborhood of the type that he erected, the denial of his application for a variance was arbitrary and lacked a rational basis.

The Board argued that the application was properly denied because DeVito's lot, although unusual, did not itself create the need for the variance. The uniqueness of the property itself must create the need for the variance. There is nothing inherent in the nature of the lot that prevented DeVito from complying with the ordinance, which was intended to prevent a tunneling effect in the neighborhood that is caused by high opaque fences. The neighboring houses that have high fences did not receive variances. Those fences were either installed without a proper application or were grandfathered as non-conforming, existing uses.

The Board also argued that DeVito's application did not meet the negative or positive criteria as set out in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, because DeVito could accomplish his goals by installing a three foot fence in compliance with the ordinance and planting shrubs that would effectively screen the property.

The judge acknowledged the deference due to the Board's decision, but found that its "denial of [DeVito's] variance request cannot be sustained." The judge issued an order reversing the Board's denial of DeVito's application and ordering its approval.

On appeal, the Board contends that: the trial court "decision should be reversed . . . because [its] determination was not arbitrary, capricious or unreasonable"; and the judge substituted her judgment for that of the Board. We agree.

The standard is well settled. First, we note that, "[j]udicial review of a zoning board's decision is ordinarily limited." Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002). "The proper scope of judicial review [is] . . . to determine whether the board could reasonably have reached its decision." Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987) (citing Kramer v. Bd of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965)). For that reason, "[a] [c]ourt will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557, 563 (D.N.J. 2000)). Thus, "[a] local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer, supra, 45 N.J. at 296. "Actions of a board of adjustment are presumed to be valid and the party attacking such action has the burden of proving otherwise." N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of the Twp. of Bernards, 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999) (citing Kramer, supra, 45 N.J. at 296). Lastly, we note that "[c]ourts give greater deference to variance denials than to grants of variances, [because] variances tend to impair sound zoning." Medical Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citing Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981)).

In Lang v. Zoning Bd. of Adjustment of the Borough of N. Caldwell, 160 N.J. 41 (1999), we noted "an overriding principle governing judicial review of variance decisions by boards of adjustment is that, assuming an adequate basis in the record for a board's conclusions, deference to the judgment of local zoning boards ordinarily is appropriate." Id. at 58. The "personal hardship is irrelevant to the statutory standard." Id. at 53. "[T]he correct focus must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Ibid. "[Pursuant to] the [MLUL], what is essential is proof that the need for the variance is occasioned by the unique condition of the property that constitutes the basis of the claim of hardship." Id. at 56 (citing Place v. Bd. of Adjustment of the Borough of Saddle River, 42 N.J. 324, 331 (1964)).

Here, we conclude, based on this standard of judicial review, that the judge exceeded her authority in reversing the Board and ordering that the variance be granted. First, DeVito's hardship does not arise from the unusual nature of the property because the shape of the lot does not cause the need to erect a six-foot fence. Second, the Board's resolution articulated coherent reasons for the denial of the application. These reasons are based on findings that are supported by the proofs before the Board, which was the fact finder. Therefore, the Board's findings are binding on the Law Division and us. See Kramer, supra, 45 N.J. at 296.

The Board's second contention is that DeVito failed to meet his burden of proof with respect to the negative criteria. Specifically, the Board argues that DeVito has failed to carry his burden of proof to show that the fence would not have a substantial negative impact on the public good. We agree.

An application for a variance must meet the negative as well as the positive criteria. The MLUL provides:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, 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. . . .

N.J.S.A. 40:55D-70

"The requirement that the grant of the variance not 'substantially impair the intent and the purpose of the zone plan and zoning ordinance' focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Lang, supra, 160 N.J. at 57 (quoting Medici v. BPR Co., 107 N.J. 1, 21 (1987)). In considering whether an applicant has met the negative criteria, "[a] court is constrained to focus not on the characteristics of the land that 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." Menlo Park Plaza Assocs. v. Planning Bd. of the Twp. of Woodbridge, 316 N.J. Super. 451, 460-61 (App. Div. 1998), cert. denied, 160 N.J. 88 (1999) (citing Kaufmann v. Planning Bd. for the Twp. of Warren, 110 N.J. 551, 563 (1988)).

DeVito has asserted that his neighbors complimented him on his new fence. There is no testimony on the record to that effect. However, it is the zoning plan, not the views of individual neighbors that defines "substantial detriment to the public good" or "substantial impairment" of the zone plan and zoning ordinance. Here, the zone plan expresses a preference in favor of open views in the neighborhood. DeVito failed to produce evidence that the zoning plan would not be substantially impacted by the fence. Although DeVito claimed that a hedge is not feasible due to low overhanging electrical wires, there was no evidence that the wires were dangerously close to a six-foot hedge, or why they were not a threat to a six-foot opaque vinyl fence. In short, he did not prove that his purposes could not have been accomplished by the erection of a three-foot opaque fence, which would comply with the ordinance, and a six-foot hedge.