CORNELIUS VAN ESS v. BOARD OF ADJUSTMENT OF THE BOROUGH OF TOTOWA

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0605-18T1

CORNELIUS VAN ESS
and LUISA VAN ESS,

          Plaintiffs-Appellants,

v.

BOARD OF ADJUSTMENT OF
THE BOROUGH OF TOTOWA,

     Defendant-Respondent.
_____________________________

                    Argued October 17, 2019 – Decided October 28, 2019

                    Before Judges Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-2732-17.

                    Michael F. DeMarrais argued the cause for appellants
                    (Alampi & DeMarrais, attorneys; Michael F.
                    DeMarrais and Jennifer Alampi, on the briefs).

                    Richard Brigliadoro argued the cause for respondent
                    (Weiner Law Group LLP, attorneys; Richard
                    Brigliadoro, of counsel and on the brief; Ronald D.
                    Cucchiaro, on the brief).
PER CURIAM

      Plaintiffs, Cornelius Van Ess and Luisa Van Ess, appeal from an order

which affirmed the denial of variances by defendant Borough of Totowa Zoning

Board of Adjustment (Board). We affirm, substantially for the reasons set forth

in the comprehensive written opinion of Judge Ernest M. Caposela.

      Plaintiffs reside in a single-family home in the Borough of Totowa

(Borough) located in the R-7 Single Family Residential Zone District (R-7

Zone). Mr. Van Ess is a retired police officer and Vietnam veteran who is totally

and permanently disabled as a result of injuries sustained during his military and

police careers. On January 9, 2017, plaintiffs received notice from the Borough

Zoning Department directing them to correct their non-conforming 540-foot

asphalt parking area on their front lawn. This notice led plaintiffs to apply to

the Board for variances to retain their existing driveway expansion.

      A hearing was held before the Board in June 2017, during which Mr. Van

Ess testified that his injuries affected his ability to walk and caused him

permanent pain. Mr. Van Ess affirmed he used a “roller” to walk long distances,

and needed a cane for shorter walks. Mr. Van Ess further testified that the first

floor of his home was converted into a handicap-accessible living area and that




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he spends eighty-five percent of his time in his bedroom due to his difficulty in

navigating stairs.

      To accommodate his disability, Mr. Van Ess testified that he engaged a

contractor to install a driveway expansion large enough for at least two cars, and

"possibly three," near the front door of his home. Mr. Van Ess paved a portion

of his front yard for his "personal convenience [because] it was much . . . easier

for [him] to get closer to the house and get in and out of the house." He added

that by creating the driveway expansion, he only had to walk up one nine-inch

step and one four-inch "lip" until he could install a handicap-accessible ramp.

Additionally, he testified that the front entrance to his home is the only entrance

to his first-floor handicap-accessible living area.

      The expanded driveway was completed without plaintiffs obtaining the

necessary approval from the Board. Plaintiffs also previously converted their

two-car garage into a living space without receiving the proper approval. This

conversion eliminated two parking spots on their property.

      During the hearing, a licensed professional planner testified on behalf of

plaintiffs in support of variance relief. The planner testified that plaintiffs’

home sits on an irregular, "wedge-shaped" parcel in relation to the rest of the

neighborhood. Explaining the need for variance relief, the planner advised that


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plaintiffs sought a variance for a front yard setback, “which requires that no

required parking space shall be located closer to a street line than the minimum

depth of the front yard . . . and that would be [twenty-five] feet." 1 The planner

also clarified that plaintiffs needed a second variance because the zoning

ordinance required that "no driveway or parking area shall be installed within

the front or rear yard, other than that which provides access to a garage or an

approved parking area." The planner opined that both variances should be

granted due to Mr. Van Ess's disability since there was no other location on the

property to reasonably accommodate a driveway expansion. The expansion was

not a detriment to the public good since plaintiffs would be maintaining parking

on site and not "overhanging" the sidewalk with their cars.

      The Board denied plaintiffs' variance application, finding that if plaintiffs

had not previously eliminated the two-car garage, Mr. Van Ess would have been

able to park his car in the garage to allow access to his living area. The Board

also stated Mr. Van Ess could park his car in the original driveway, as it is a

"short distance to enter the front door of the dwelling." The Board deemed the

distance between accessing the dwelling from the existing driveway versus the



1
   The record reflects plaintiffs’ home is set back nineteen feet from the street
line.
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new expansion of the driveway to be a "de minimis difference." Additionally,

the Board questioned the need for two parking spaces in the front yard when

only Mr. Van Ess sought an accommodation for his disability.

      Citing Kaufman v. Planning Board for Twp. of Warren,  110 N.J. 551, 563

(1988) and  N.J.S.A. 40:55D-2, the Board found plaintiffs' application did not

represent a better zoning alternative for the property and variances could not be

granted without substantial detriment to the public good.          Moreover, it

concluded plaintiffs used Mr. Van Ess's disability as a pretext to add additional

on-site parking for other family members who lived in the home. Further, while

the Board recognized Mr. Van Ess's disability, it determined that under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, as well

as the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. §§ 3601 to

3619, plaintiffs had the burden to show that a requested accommodation was

needed to give Mr. Van Ess an equal opportunity to use and enjoy his housing.

The Board recognized that, thereafter, the burden shifts to it to show that the

requested accommodation is unreasonable. 42 U.S.C. § 3604(F)(3). Ultimately,

the Board found plaintiffs had not satisfied the statutory positive or negative

criteria warranting variance relief and that the requested accommodation was

unreasonable.


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      Plaintiffs subsequently filed a complaint in lieu of prerogative writs,

seeking a reversal of the Board's decision and challenging the Board's failure to

reasonably accommodate Mr. Van Ess’s disability. During the proceedings,

Judge Caposela acknowledged Mr. Van Ess’s disability, but expressed concern

that the "handicapped parking area appear[ed] to be wider than what might be

necessary to just accommodate [Mr. Van Ess’s] van." In his August 30, 2018

opinion, the judge affirmed the Board's denial of plaintiffs’ application, noting

plaintiffs created their parking issue by previously converting their two-car

garage into a living space and then paving a large area of their front lawn without

prior approval from the Board. The judge found plaintiffs "built the garage

living space and the parking area without giving the Borough an opportunity to

consider a reasonable legal accommodation."

      Plaintiffs raise the following arguments on appeal: (1) the ADA and the

FHAA preempt local zoning laws; (2) the lower court applied the wrong legal

standard in upholding the Board's decision; and (3) plaintiffs are entitled to

counsel fees. We disagree.

      We review a zoning board's decision using the same standard as the trial

court, Cohen v. Bd. of Adjustment of the Borough of Rumson,  396 N.J. Super.
 608, 614-15 (App. Div. 2007), and, like the trial court, our review is limited.


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Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment,  152 N.J.
 309, 327 (1998). We give deference to a zoning board's decision and will only

reverse if the decision was arbitrary, capricious or unreasonable.          Kane

Properties, LLC v. City of Hoboken,  214 N.J. 199, 229 (2013). However, where

the issue on appeal involves a purely legal question, we afford no special

deference to the trial court's or the zoning board's decision, and must determine

if the board understood and applied the law correctly. D. Lobi Enters., Inc. v.

Planning/Zoning Bd. of the Borough of Sea Bright,  408 N.J. Super. 345, 351-52

(App. Div. 2009).

      In affording deference to a zoning board, a reviewing court may not

substitute its judgment for that of the municipal body.         Kramer v. Bd. of

Adjustment,  45 N.J. 268, 296-97 (1965). As Justice Long emphasized in Jock

v. Zoning Bd. of Adjustment:

            In the final analysis . . . public bodies, because of their
            peculiar knowledge of local conditions, must be
            allowed wide latitude in their delegated discretion. The
            proper scope of judicial review is not to suggest a
            decision that may be better than the one made by the
            board, but to determine whether the board could
            reasonably have reached its decision on the record.

            [ 184 N.J. 562, 597 (2004) (citations omitted).]




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      Consistent with this jurisprudential policy of deference to a local board's

peculiar knowledge of local conditions, "[a] court should sustain a local zoning

board's determination to grant a zoning variance if that board's decision

comports with the statutory criteria and is founded on adequate evidence [in the

record.]" Burbridge v. Mine Hill,  171 N.J. 376 (1990). We give even greater

deference to a planning board's decision to deny a variance. Nextel of New

York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment,  361 N.J. Super.
 22, 38 (App. Div. 2003) (citing Northeast Towers, Inc. v. Zoning Bd. of

Adjustment for W. Paterson,  327 N.J. Super. 476, 494 (App. Div. 2000)); Med.

Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment,  343 N.J. Super.
 177, 199 (App. Div. 2001). "That heavier burden requires the proponent of the

denied variance to prove that the evidence before the board was 'overwhelmingly

in favor of the applicant.'" Nextel of New York, Inc.,  361 N.J. Super. at 38

(quoting Northeast Towers,  327 N.J. Super. at 494).

      "A board acts arbitrarily, capriciously, or unreasonably if its findings of

fact in support of [its decision] are not supported by the record, or if it usurps

power reserved to the municipal governing body or another duly authorized

municipal official." Ten Stary Dom P'ship v. Mauro,  216 N.J. 16, 33 (2013)

(citations omitted) (first citing Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of


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Adjustment,  152 N.J. at 327; then citing Leimann v. Bd. of Adjustment,  9 N.J.
 336, 340 (1952)).

      Applying the above standards, we discern no reason to disturb the

decisions of the trial court or the Board and affirm substantially for the reasons

expressed in Judge Caposela's cogent written opinion. In particular, we find no

error in Judge Caposela's conclusion that "[a] review of the [variance hearing]

transcript and of the zoning ordinances and the zoning laws shows an absence

of any intentional discrimination by the defendant or discriminatory impact,

particularly because the Borough is not refusing to make a reasonable

accommodation."

      Plaintiffs' remaining arguments lack sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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