ROBERT LEONARD v. HAWORTH ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3958-07T33958-07T3

ROBERT LEONARD,

Plaintiff-Appellant,

v.

HAWORTH ZONING BOARD OF ADJUSTMENT

AND THE BOROUGH OF HAWORTH,

Defendants-Respondents.

______________________________________________________

 

Argued February 9, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9294-06.

Brian T. Giblin argued the cause for appellant (Giblin & Giblin, attorneys; Mr. Giblin, on the brief).

Alexander T. West, Jr., argued the cause for respondent Haworth Zoning Board of Adjustment.

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Plaintiff Robert Leonard appeals from an order dismissing his action in lieu of prerogative writs following the Haworth Zoning Board of Adjustment's (Board's) denial of his application for a variance for a proposed driveway on plaintiff's undeveloped lot. For substantially the reasons articulated by Judge Joseph S. Conte, Sr., in his written opinion and in the resolution of the Board, dated November 7, 2006, we affirm.

The facts that follow are relevant to this appeal. Plaintiff owns a vacant parcel of land designated as Lot 1, Block 142.01, located in the "A" residential zone of the Borough of Haworth. The lot is approximately 1.5 acres and is irregular in shape; it is 800 feet in length along its longest border to the west, and only 82 feet at its widest point. The western and southern borders of the property are constrained by steep slopes created from the development of the bordering rail line by a previous owner, Penn Central Corporation.

Plaintiff's parcel is designated as a "through" lot with frontage on two streets. The lot is non-conforming in both lot width and lot frontage. It has approximately fifteen feet of road frontage to the south on Massachusetts Avenue, and eighteen feet of road frontage to the north at the intersection of Houston Place and Ivy Avenue. This intersection connects to the Ivy Avenue Bridge, which is a one-lane overpass over the West Shore Railroad line.

Plaintiff's traffic expert, Barry Sutherland, testified that the bridge is less than fifty feet from the site of plaintiff's proposed driveway. He stated that, were the driveway to be situated on Ivy Avenue, as proposed, a right-hand-turn out of the driveway and into the driveway could be made safely, but a left-hand-turn could not be made safely. Mr. Sutherland did not do a traffic study for access via Massachusetts Avenue as he was under the impression that a driveway could not be constructed on the southern portion of the property because it was protected by the Critical Environmental Area (CEA) ordinance. All of the parties later agreed that the CEA ordinance is not applicable to driveway construction.

Plaintiff's engineering expert, Mr. Piazza, testified that, in his opinion, it was possible, from an engineering perspective, to locate the driveway on the southern end of the property; he also was under the impression that the CEA ordinance prevented access from the south. Plaintiff's other engineering expert, Mr. Weissman, was of the opinion it was not feasible to construct a driveway off the southern end of the property to access Massachusetts Avenue.

The Board denied plaintiff's application for a variance in a resolution dated November 7, 2006. The reasons for the denial included the Board's finding that allowing access to the property from Ivy Avenue would result in substantial detriment to the public good, and that "the benefit to the property did not outweigh the detriment to the zone plan." More particularly, the Board found that "locating the driveway at the entrance to the bridge would create safety hazards for vehicles leaving and entering the property and for vehicles and pedestrians, including children, using the bridge." In addition, the Board determined that the proposed driveway created access problems for emergency vehicles.

On December 15, 2006, plaintiff filed his complaint in lieu of prerogative writs against the Board. The action was bifurcated for further proceedings by order dated March 28, 2007. The case was tried before Judge Conte on June 14, 2007. On July 26, 2007, the judge rendered his decision in favor of the Board. On October 4, 2007, the court entered judgment on count one in favor of defendants and dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff raises the following arguments:

POINT I: THE BOARD'S DENIAL OF THE REQUESTED VARIANCES WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

POINT II: THE BOARD'S DECISION WAS NOT BASED UPON THE EVIDENCE ADDUCED AT THE HEARINGS.

We address each in turn.

I.

Plaintiff contends that the Board's denial of his variance request was arbitrary, capricious, and unreasonable. After a careful review of the record, and the reasons set forth in the Board's resolution and Judge Conte's letter opinion, we disagree.

Judicial review of a zoning board's decision ordinarily is limited. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). A board's decision is "presumptively valid, and is reversible only if arbitrary, capricious and unreasonable." Ibid. (quoting Sica v. Bd. of Adjustment, 127 N.J. 152, 166-67 (1992)). An appellate court 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. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment, 90 F. Supp. 2d 557, 563 (D.N.J. 2000)). A board's decision to deny a variance in preservation of a zoning plan is entitled to even greater deference than a decision to grant a variance. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003). That heavier burden requires the proponent of a denied variance to prove that the evidence before the board was "overwhelmingly in favor of the applicant." Ibid. (internal quotations omitted).

Similarly, a municipality's informal interpretation of an ordinance is also entitled to deference; however, that deference has limits. Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 29-30 (App. Div.), certif. denied, 197 N.J. 15 (2008). "'As with other legislative provisions, the meaning of an ordinance's language is a question of law that [courts] review de novo.'" Id. at 30 (alteration in original) (quoting Bubis v. Kassin, 184 N.J. 612, 627 (2005)).

In the case under review, plaintiff applied for a variance, claiming undue hardship based upon the physical peculiarity of the property. It is undisputed that the parcel of land that is the subject of this appeal is "irregular in shape and has some exceptional topographical features." However, plaintiff's underlying variance application was not based upon a parcel that failed to meet frontage and size requirements. Rather, the application to the Board for a hardship variance made a singular request to allow access to and from the property at Ivy Avenue. Plaintiff claims that he must access his property via the northern Ivy Avenue frontage because of the hardship posed by the steep sloping terrain near the western and southerly borders. Notably, plaintiff and his experts were not prepared to discuss or testify as to the feasibility of alternative access via Massachusetts Avenue.

N.J.S.A. 40:55D-70(c) authorizes the Board to grant a variance from the strict application of a zoning regulation where strict application would result in "peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of [the] property." Relief may be warranted where the difficulties and hardships result from the following:

(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.

[Ibid.]

A hardship variance is peculiar to the property, not the property owner. As such, "undue hardship refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise."
Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 590 (2005). Whether a hardship variance is warranted is wholly dependant upon how the hardship was created on the property. Ibid. Property owners who are blameless for the nonconformity are entitled to a hardship variance and may convey their property, along with the variance entitlement, even to a buyer who knows of the nonconformity. Ibid. However, where the hardship or nonconforming condition has been created by the property owner, or the property owner's predecessor in title, the hardship may be deemed to be self-imposed and relief will not ordinarily be granted. Id. at 591. Where a predecessor in title created the nonconformity, a successor in title is not entitled to a variance based upon hardship, "despite the passage of time and the fact that he is not significantly related to the original wrongdoer." Ketcherick v. Borough of Mountain Lakes Bd. of Adjustment, 256 N.J. Super. 647, 649 (App. Div. 1992) (quotation marks omitted).

In the instant case, the subject property was deeded to the New York State Realty and Terminal Company in 1929. At some point not clear from the record, the topography of the subject parcel and adjoining land was "improved" to accommodate railroad development for what is now known as the West Shore Railroad line. In 1985, the Penn Central Corporation conveyed, by quitclaim deed, the subject parcel to plaintiff's father, Paul Leonard. In 1986, Paul conveyed the property to his son, Robert. Robert subsequently conveyed the property to his mother, Phyllis Zenk, in 1988, and Phyllis conveyed it back to Robert, the plaintiff, in 2002.

Here, Penn Central, a predecessor in title to the land, was responsible for creating the steep sloping condition on the property. Thus, under Ketcherick, supra, 256 N.J. Super. at 649, plaintiff's claimed hardship due to the sloping condition of the property is deemed self-imposed. Plaintiff did ask the Borough to grant him an easement across the Borough's adjoining property, but plaintiff was not amenable to giving consideration to the municipality to secure such an easement.

In denying plaintiff's variance application, the Board concluded that plaintiff had "failed to establish that access to Ivy Avenue is the only viable means of access to the property." The Board likewise concluded that "the denial of this access route results in a hardship in that it renders the property inaccessible." Plaintiff contends that the Board's conclusion amounts to an abuse of discretion and that he had met the burden of demonstrating that his proposal to locate the driveway on Ivy Avenue "would provide safe traffic movements in and out of the property." Given the limited scope of our review, we reject that contention.

What plaintiff's expert did establish is that from Ivy Avenue, only a right-hand-turn could be safely made into and out of the property, and that guarded opinion was conditioned upon vehicular compliance with the posted five mile per hour speed limit over the bridge. Moreover, to enforce a right-turn-only restriction on the proposed driveway, plaintiff's expert offered solutions which are of questionable efficacy, such as posting a sign on the property or curving the drive toward the right, neither of which measures would ensure vehicular and pedestrian safety if the variance were granted.

Two of plaintiff's experts testified that one of the reasons access to the parcel via the southerly Massachusetts Avenue border was not considered is that the driveway would have to be constructed through land designated as CEA land. Haworth Land Use Ordinance Section 26-502.5(c) defines a CEA as "land characterized by a water supply reservoir, flood plain, water course, wetland, or slope of fifteen (15%) percent or greater." The Haworth ordinance governing CEAs prohibits a "principal or accessory building [to] be located in whole or in part in any CEA land." The restrictions explicitly pertain only to building structures and do not apply to the construction of driveways on CEA land. Plaintiff's reliance on this regulatory restriction to suggest the absence of alternative access from the southern border of the property was erroneous, and the Board properly disregarded expert opinions premised on that erroneous understanding.

II.

Plaintiff also contends that the Board's resolution denying his application for a variance does not contain detailed findings of fact upon which the Board based its resolution. We disagree.

The Legislature and our jurisprudence recognize that local residents who comprise the Board are "familiar with their community's characteristics and interests and . . . are best equipped" to assess the merits of variance applications. Ward v. Scott, 16 N.J. 16, 23 (1954); N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, 370 N.J. Super. 319, 331 (App. Div. 2004) (recognizing a Board's "peculiar knowledge of local conditions[.]"). To safeguard the integrity of the local regulatory process, the Board is required by statute to memorialize its decision in a resolution. The resolution must meet standards set forth in N.J.S.A. 40:55D-10(g), which requires that "a municipal agency [must] reduce each decision on any application to writing in the form of a resolution that includes findings of fact and conclusions of law." N.Y. SMSA, supra, 370 N.J. Super. at 332.

The relevant statute authorizing boards to grant zoning variances states:

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(d).]

Thus, the laws governing the Board's discretion in granting variances require the applicant to demonstrate "positive criteria" and "negative criteria." An applicant satisfies this burden of proof only when both the "positive" and "negative" criteria are met. Cell S. of N.J., supra, 172 N.J. at 82. Generally, "to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR of N.Y., supra, 152 N.J. at 323 (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). In addition, to satisfy the negative criteria, an applicant must demonstrate that the variance "can be granted without substantial detriment to the public good," and "that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Ibid. (internal quotations omitted); see also New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999).

The Board considered all of the evidence presented, including the testimony of plaintiff's three experts who testified as to traffic and pedestrian safety and access feasibility via Ivy Avenue. Mr. Sutherland, plaintiff's traffic expert, testified that a right-hand-turn out of the proposed driveway would be a safe maneuver, provided that traffic flow did not exceed the bridge's speed limit of five miles per hour. In reviewing the Board's determination, the Law Division judge noted that Mr. Sutherland was unwilling to testify as to what impact on the safe exit/entrance of the proposed driveway if drivers were to travel in excess of the bridge's posted speed limit.

Local residents testified that often traffic on opposing sides of the bridge must: (1) pull over, (2) wait in line, or (3) back up, in order to accommodate oncoming traffic. Added to this complex vehicle exchange on the bridge is foot traffic that includes after-school pedestrians. Neighboring residents testified about their concerns that adding yet another obstacle would exacerbate the already problematic traffic flow across the bridge. The trial judge found, and we agree, the primary concern of the Board in addressing plaintiff's proposed Ivy Avenue entrance to his property was the safety of automobiles and pedestrians, and that is a legitimate concern that warrants judicial deference.

In its resolution, the Board recited the substantial body of evidence it had considered prior to ruling on plaintiff's application. That evidence included land records, plot plans, maps, as well as testimony and submissions from experts, neighboring residents, and local officials. The Borough and the trial judge found on substantial credible evidence that plaintiff failed to demonstrate that his driveway could be located on Ivy Avenue without substantial detriment to the public good, and without interference to the existing zone plan. The Board concluded, "[t]he benefit to the property did not outweigh the detriment to the zone plan." Further, the plaintiff "failed to establish that, because of some unique characteristic of the property [that was not self-imposed], a strict application of the zoning ordinance would result in difficulties or hardship upon the development of plaintiff's property." Finally, plaintiff did not demonstrate that his property would be zoned into inutility if he was not granted a variance to locate his driveway on Ivy Avenue.

 
Affirmed.

New York Central Railroad took title in the name of the New York State Realty and Terminal Company.

In 1968, the Pennsylvania Railroad Company and the New York Central Railroad merged to become Penn Central.

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A-3958-07T3

April 21, 2010