(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued February 16, 1999 -- Decided July 19, 1999
Stein, J., writing for a unanimous Court.
At issue in this appeal is the grant of a bulk, or dimensional, variance under the New Jersey Municipal Land
Use Law (MLUL), N.J.S.A. 55D-1 to -129, for the construction of an in-ground swimming pool on a residential
property in North Caldwell. Construction of the pool as proposed by Robert Calabrese, the applicant for the variance
under N.J.S.A. 55D-70 (c), would result in an insufficient side yard setback on the southerly side of the property, an
insufficient rear yard setback, and coverage of 14.17 percent of the land in the property's rear yard rather than the 10
percent permitted by ordinance to be occupied by a pool.
The pool was intended to replace an existing above-ground pool and deck. The Calabrese property was
nonconforming under the local zoning ordinance when Calabrese acquired it in 1990, being only sixty feet wide at
the street line, slightly less than seventy-eight feet wide at the rear lot line, 140.71 feet deep along the southerly side,
and 132.13 feet deep along the northerly side line, whereas lots in the R-2 zone were required to have a minimum
width of 100 feet, a minimum depth of 125 feet, and a minimum lot size of “15,000 square feet within the first . . .
150 feet.” A paved driveway and garage covered almost all of the northerly side yard and a substantial portion of the
rear yard. Under the plan submitted to the North Caldwell Zoning Board of Adjustment (Board), the new pool would
be set back about thirty feet from the northerly sideline (seven and one-half feet from the garage), about eight feet
from the southerly sideline at its nearest point, and fifteen feet from the rear lot line at its nearest point. The zoning
ordinance called for in-ground swimming pools to be set back twenty feet from each sideline and from the rear line.
The only objector to the proposed variance was Josephine Lang, whose property abutted the Calabrese lot
rear yard to rear yard, and who objected on the ground that the size of the proposed pool precluded its being installed
in compliance with the applicable ordinances. The Board granted the variance under both subsections (c) (1) and (c)
(2) of N.J.S.A. 40: 55D-70. The Board found that the need for the variance was created by the unusual narrowness of
the lot, combined with the location of the driveway and garage and that those unique features of the property
constituted exceptional and undue hardship within the meaning of the statute. The Board also determined that
replacing the above-ground pool and deck with an in-ground pool constituted an aesthetic and safety enhancement to
the property that outweighed any detriment. The “negative criteria” of subsection (c) (2) of the statute were seen as
satisfied by the proposed location of the pool on the lot and the existing and planned landscaping, which would
shield the pool from the view of the neighbors unless they stood at the boundary of the properties.
Lang filed an action in lieu of prerogative writ in the Law Division challenging the validity of the Board's
action. The court agreed with the Board that because of the narrowness of the Calabrese property it would be almost
impossible to meet the applicable setback requirements. The court concluded that the determination of the Board was
based on adequate evidence in the record and was neither arbitrary, capricious, nor unreasonable and so sustained the
grant of the variances.
Lang appealed and the Appellate Division reversed the judgment of the Law Division. The court inferred
that the Board had granted a (c) 2 variance because it found no proof of hardship sufficient to support the grant of a
(c) 1 variance. The Appellate Division stated that the only asserted basis for a claim of hardship was that an
“oversize” pool was required because of the need to accommodate a diving board and concluded that
accommodating a diving board was not a hardship, particularly where the ordinance limits the size of a pool in a
conforming backyard to 300 square feet. (The Calabrese pool would be 630 square feet.) The Appellate Division
rejected the grant of the (c) 2 variance, noting that an in-ground pool that complied with the area and setback
requirements of the ordinance would also provide the safety and aesthetic advantages to the community.
Accordingly, the court concluded that the Board had acted arbitrarily and reversed the judgment of the Law Division.
HELD: The variances granted by the Board of Adjustment must be sustained because the Board's findings were
based on proofs that the setback and area variances were required by reason of the unusual narrowness of the lot and
the existing structures on the property; because there is ample support for the findings that an in-ground pool would
be an improvement from aesthetic and safety standpoints; and because no evidence in the record contradicts the
Board's findings that the negative criteria were satisfied.
1. In addressing the “hardship” requirement of subsection (c) 1, the focus should be on whether strict enforcement of
the ordinance would cause undue hardship because of the unique or exceptional conditions of the property, not on
whether strict enforcement would cause a personal hardship for the applicant. Under subsection (c) 2, a bulk or
dimensional variance that advances the purposes of the MLUL can be granted if the benefits of the deviation
outweigh any detriment. Whether the variance is sought under subsection (c) 1 or (c) 2, the grant of the variance
must not have a substantial negative impact on the public good, focusing on the adjacent affected properties, and
must be able to be reconciled with the zoning restriction from which the applicant seeks to deviate. ( pp.13-23)
2. Assuming an adequate basis in the record and the correct application of relevant principles of land use law,
reviewing courts ordinarily should defer to the judgment of the zoning board. In this case, the Board properly
focused on the extreme and unusual narrowness of the applicant's lot and on the location and dimensions of the
driveway and garage to find a hardship under subsection (c)1. The record also supports the Board's finding that
replacing the existing deck and above-ground pool with an average-sized in-ground pool would promote a “desirable
visual environment” and advance the safety and aesthetic purposes of zoning. Finally, the location of shrubbery in
place and proposed together with the location of the pool and the dwellings on the adjacent properties amply support
the Board's conclusion that the negative criteria were satisfied. ( pp. 23-28)
The judgment of the Appellate Division is REVERSED and the judgment of the Law Division is
REINSTATED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in the opinion of JUSTICE STEIN.
SUPREME COURT OF NEW JERSEY
A-
20 September Term 1998
JOSEPHINE F. LANG,
Plaintiff-Respondent,
v.
ZONING BOARD OF ADJUSTMENT OF THE
BOROUGH OF NORTH CALDWELL,
Defendant-Appellant,
and
ROBERT CALABRESE,
Defendant.
Argued February 16, 1999 -- Decided July 19, 1999
On certification to the Superior Court,
Appellate Division.
Donald M. Ross argued the cause for appellant
(Dolan and Dolan, attorneys).
Nicholas Albano, Jr., argued the cause for
respondent.
The opinion of the Court was delivered by
STEIN, J.
This appeal involves a conventional "c" variance application
to permit construction of an in-ground swimming pool with an
insufficient southerly side yard setback, an insufficient rear
yard setback, and land coverage of the property's rear yard
consisting of 14.17 percent rather than the 10 percent permitted
by ordinance. The North Caldwell Board of Adjustment (Board)
granted the variance under both subsections (c)(1) and (c)(2) of
N.J.S.A. 40:55D-70. The Board determined that the applicant's
need for the variances was occasioned by the unusual narrowness
of the applicant's lot, combined with the pre-existence of a
paved driveway and garage along the northerly side of the
property's rear yard, and that those unique attributes of the
property constituted exceptional and undue hardship within the
meaning of the statute. The Board also determined that the
applicant's proposed replacement of an existing above-ground pool
and deck with an in-ground pool constituted an aesthetic and
safety enhancement to the property that outweighed any detriment.
Concluding that the statutory negative criteria also were
satisfied by the applicant's proofs, the Board granted the
variances, imposing conditions relating to fencing and
landscaping along the rear lot line.
The property owner to the rear of the applicant's lot
challenged the grant of the variances. The Law Division upheld
the variances. The court noted that, although the applicant's
pro se presentation to the Board was not as comprehensive as it
might have been, the record demonstrated that "by virtue of the
narrowness of the lot it's almost impossible . . . to meet the
side yard and rear yard restrictions," concluding that absent any
showing of arbitrariness the court would not substitute its
judgment for that of the Board. In an unpublished opinion the
Appellate Division reversed, observing that to the extent the
length of the proposed pool was influenced by the desire to
accommodate a diving board, the purported need for a diving board
did not constitute a hardship sufficient to support a variance
under subsection (c)(1) of the statute. The court also rejected
the Board's finding that the aesthetic and safety benefits
derived from replacing an above-ground pool with an in-ground
pool were sufficient to support a (c)(2) variance. Concluding
that the Board's action was arbitrary, the court reversed the
judgment of the Law Division.
We granted certification,
156 N.J. 411 (1998), and now
reverse the judgment of the Appellate Division and reinstate the
grant of the variances sustained by the Law Division.
As is often the case in variance appeals, a detailed
understanding of the relevant facts is an indispensable
prerequisite to the correct application of the controlling legal
principles. The applicant, Robert Calabrese, was an owner of a
one-family residential dwelling at 2 Hillcrest Place in the
Borough of North Caldwell (Borough) that he acquired in 1990.
The zoning ordinance required lots in that zone to have a minimum
width of 100 feet, minimum depth of 125 feet, and minimum lot
size of "15,000 square feet within the first . . . 150 feet."
Calabrese's property was nonconforming when he acquired it. It
was sixty feet wide at the street line and slightly less than
seventy-eight feet wide at the rear lot line. At its deepest
point the property measured 140.71 feet from front to rear along
the southerly side line, and 132.13 feet along the northerly side
line.
At the time of the application Calabrese's property was
improved with a two-story residential dwelling. The rear yard
contained an above-ground swimming pool with approximate
dimensions of twenty-six feet by fifteen feet (390 square feet)
constructed behind an irregularly-shaped deck with dimensions of
approximately twenty-six feet by twenty feet (520 square feet).
In addition, extending from the front of the property along the
northerly sideline was a driveway, twenty-two feet in width at
its widest point, leading to a concrete block garage in the
northeast corner of the rear yard. As the Board's resolution
notes, the paved driveway and garage occupy "substantially all of
the left side yard and a substantial portion of the rear yard."
Calabrese submitted an application and plan to the Board
seeking to remove the existing above-ground pool and the adjacent
deck, and to construct an in-ground pool thirty-five feet long
and eighteen feet wide, described by the applicant as a "stock
size" pool with a vinyl liner the dimensions of which constituted
the minimum size pool that could accommodate a diving board. (We
note that the size of the proposed pool (630 square feet) appears
to be fairly typical of the size of in-ground pools installed at
single-family residential properties. See Letter from Tom Casey,
Vice-President Sales, Anthony & Sylvan Pools, to Stephen W.
Townsend, June 9, 1999 (stating that based on construction of 188
pools in northern New Jersey from October 1, 1998 to present, the
average water surface area of all finished pools is 654 square
feet)).
According to Calabrese's proposed plan, the in-ground pool
would be set back approximately thirty feet from the northerly
sideline, and separated by about seven and one-half feet from the
concrete block garage. At its nearest point to the southerly
sideline, the pool would be set back eight feet from the property
line. The northerly end of the pool would be set back fifteen
feet from Calabrese's rear property line and the southerly end of
the pool would be nineteen feet from the rear lot line. Annexed
as Appendix A to this opinion is a survey of Calabrese's property
prepared by Alfred J. Clark, Inc., and depicting the proposed in
ground pool on Calabrese's property.
Calabrese sought variances from the provisions of Section
107-22B(2)(a) of the Board's zoning ordinance, which requires
that in-ground swimming pools be set back twenty feet from each
sideline and from the rear lot line, and limits the area of the
pool to ten percent of the area of the rear yard. The Board
calculated the area of Calabrese's rear yard to be 4446 square
feet, and determined that the area of the proposed pool (630
square feet) would occupy 14.17 percent of the rear yard area.
Concerning the side yard variance, the plan demonstrated
that because of the location of the existing garage and driveway
it would not be possible to move the pool any closer to the
northerly sideline and thereby increase the setback from the
southerly sideline. Calabrese testified that an evergreen hedge
about fourteen feet high extended along the southerly sideline
and provided a substantial buffer from the adjacent properties.
As revealed by an excerpt from the Borough's tax map submitted to
the Board and depicting the neighboring lots, the two lots
bordering Calabrese's southerly sideline front on Mountain Avenue
and are situated so that their rear yards, not their side yards,
abut Calabrese's southerly sideline. The houses on those lots
are set back approximately 80 and 95 feet from Calabrese's
southerly sideline and neither of the property owners of those
lots testified at the hearing on the variance application.
Concerning the setback variance relating to the rear lot
line, Calabrese testified that moving the pool any closer to the
house could create a safety hazard for residents of the dwelling.
He also testified that a six-foot-high stockade fence was located
along the abutting rear property line of respondent Lang, the
owner of the adjacent lot to the rear whose attorney appeared at
the variance hearing in opposition to the application. Calabrese
testified that there was existing shrubbery along his rear
property line and that he contemplated adding additional
shrubbery to create a visual buffer. Lang's property, with
dimensions of 100 feet by 120 feet, fronts on High Point Place
which is easterly of and parallel to Hillcrest Place. Lang's
residence is set back approximately 38 feet from her rear
property line.See footnote 11 At the hearing Board members pressed Lang's
attorney to set forth the reasons for his client's objection to
the variances sought, noting that the proposed in-ground pool
would be less visible from Lang's property than the existing
above-ground pool. Lang's attorney indicated that his client
objected to the fact that the size of the proposed pool precluded
its being installed in compliance with the provisions of the
local zoning ordinance.
Except for Calabrese's request for a variance to permit
construction of a six-foot fence, an issue not implicated in this
appeal, the Board granted the requested variances. The Board
required that the proposed pool be relocated to provide a
conforming twenty-foot-rear-lot-line setback at the pool's
southerly end and a sixteen-foot-rear-lot-line setback at the
pool's northerly end. The Board required Calabrese to plant a
hedgerow of evergreens along the rear lot line four feet high
that would grow to and be maintained at six feet in height within
three years. The Board prohibited overhead lighting of the pool
and required that the pump and heater be installed inside the
garage if feasible and, if not, at a location adjacent to the
garage designated by the local construction officials.
In support of its grant of the variances, the Board noted
that the applicant's property is exceptionally narrow and is one
of the narrower and smaller lots in the R-2 zoning district. The
Board observed that three of the five lots fronting on the
easterly side of Hillcrest Place are substantially wider than
Calabrese's lot and five of the seven lots on the other side of
Hillcrest Place also are wider; that all of the lots on High
Point Place, the street parallel to and easterly of Hillcrest,
are substantially wider than Calabrese's lot; and that the lots
in the neighborhood beyond Hillcrest and High Point are
"substantially larger still." The Board determined that
Calabrese's lot has been "substantially affected by subsequent
R-2 district requirements that have established onerous
limitations on owners of such properties [that] are notably
smaller than subdivided lots of a later vintage," and that
therefore the "development and redevelopment opportunities on the
subject lot and others like it are correspondingly impeded." The
Board concluded that because of the exceptional narrowness, size,
and shape of the property and the location of the existing
driveway and garage, the strict enforcement of the R-2
regulations relating to swimming pools would "severely limit and
perhaps preclude the installation of any reasonably sized
in[-]ground swimming pool in the rear yard of the subject
property." The Board concluded that because of those unique
conditions the strict enforcement of the ordinance would result
in exceptional and undue hardship justifying the grant of the
variances sought.
The Board also concluded that the variances could be
sustained pursuant to subsection (c)(2) of N.J.S.A. 40:55D-70 on
the basis that the removal of the existing above-ground pool and
deck and its replacement with a new in-ground pool and
installation of extensive landscaping was aesthetically
preferable and more visually desirable to the community, noting
as well that in-ground pools generally afford a safety advantage
over above-ground pools.
Concerning the negative criteria, the Board observed that
based on the proposed location of the in-ground pool, combined
with the existing and contemplated landscaping,
it would seem that neighboring views of the
proposed redevelopment would be quite limited
indeed. There are no homes that are so
proximate to the subject rear yard that a
view of the pool area would be experienced
from the perspective of the home. Two of the
adjoining properties on the right side of the
subject property are improved with free
standing garages in the abutting rear yards
of those properties. The property to the
rear of the subject property is not improved
in the vicinity of the subject property.
Consequently, an adjoining property owner
would have to walk to the subject property's
boundaries to observe and therefore be
significantly affected by the proposed
redevelopment.
The Board expressed the view that the grant of the required
variances appeared to pose no threat of impairment to the
surrounding area nor of any detriment to the public good.
Accordingly, the Board concluded that the proofs also satisfied
the negative criteria and therefore justified a grant of the
variances.
Lang instituted an action in lieu of prerogative writ in the
Law Division challenging the validity of the Board's action.
Judge Weiss agreed with the Board's determination that the
narrowness of the subject property rendered it "almost impossible
. . . [for the applicant] to meet the side yard and rear yard
restrictions." Concluding that the Board's determination was
based on adequate evidence in the record and was neither
arbitrary, capricious nor unreasonable, the court sustained the
grant of the variances.
A two-member panel of the Appellate Division reversed the
judgment of the Law Division. In explaining its disagreement
with the Board and the Law Division, the Appellate Division
initially took note of a provision of the local ordinance that
required a minimum rear yard setback of thirty feet for
structures other than swimming pools. Noting that a conforming
lot in the R-2 zone must have a minimum width of 100 feet, the
court incorrectly concluded that "the swimming pool portion of
[the] code contemplates that a pool in a fully conforming lot in
the zone (i.e., one with a rear yard with a 30 foot depth and 100
foot width) must not exceed 300 square feet." The panel's error
resulted from its assumption that the area of a lot's rear yard,
for purposes of compliance with the ten percent size limitation
on swimming pools, could not exceed the product of thirty feet
(the minimum rear yard setback for structures) and one hundred
feet (the minimum lot width). However, as the Board's resolution
expressly notes, the area of a lot's rear yard pursuant to the
ordinance is "the yard extending across the entire width of the
lot between the rear line of the principal building and the rear
lot line." On that basis, the Board correctly calculated
Calabrese's rear yard to occupy 4446 square feet, not 3000 square
feet as the Appellate Division assumed. Thus, that court's
review of the Board's action clearly was influenced by its
incorrect assumption that the maximum permitted size of a
swimming pool in the R-2 zone was 300 square feet.
The Appellate Division also assumed incorrectly that the
entry steps to the pool and the eighteen square foot concrete pad
for the pump and heater were to be included in the calculation of
the swimming pool area. To the contrary, the ordinance imposing
an area limitation contemplates calculation of only the area of
the pool itself.
The court next inferred that the Board had granted a (c)(2)
variance because it found no proof of hardship sufficient to
support a (c)(1) variance. As noted, however, the Board's
resolution determined that "hardship" had been established and
granted the variance under both subsections (c)(1) and (c)(2).
Without any reference to the extreme narrowness of the lot or the
existence of the driveway and garage along the northerly
sideline, the Appellate Division panel stated that the only
purported basis for a claim of hardship in the record was that
the "oversize" pool was necessary to accommodate a diving board,
concluding that "the purported diving board requirement was
insufficient to constitute a 'hardship,'" particularly, the court
noted, "where the ordinance specifically lays down a 300 square
foot limitation on pool size in a [conforming] backyard."
Rejecting the Board's grant of a variance under subsection
(c)(2) of the statute, the panel noted that the aesthetic and
safety advantages to the community also would have been offered
by an in-ground pool that complied with the setback and area
requirements of the ordinance. Concluding that the Board's
action was arbitrary, the panel reversed the Law Division's
judgment.
The provision of the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -129, that authorizes the grant of bulk or
dimensional variances -- non-use variances -- is N.J.S.A. 40:55D
70(c), which provides in pertinent part as follows:
c. (1) Where: (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, [the board of adjustment shall have
the power to] 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; (2) 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, [the board of adjustment shall
have the power to] grant a variance to allow
departure from regulations pursuant to
article 8 of this act.
[Footnotes omitted.]
Subsection (c)(1) describes the grounds on which a bulk
variance can be granted based on proof of undue hardship, setting
forth three categories of proof that can satisfy the statutory
criteria: (a) exceptional narrowness, shallowness or shape of the
property; (b) exceptional topographic conditions or physical
features uniquely affecting the property; or (c) an exceptional
situation uniquely affecting the property or its lawfully
existing structures.
Despite the clarity of the statutory language, the undefined
term "undue hardship" has been a fertile source of confusion.
See Brandon v. Board of Comm'rs of Montclair,
124 N.J.L. 135, 149
(Sup. Ct.), aff'd,
125 N.J.L. 367 (E & A 1940) ("The term
'unnecessary hardship' does not lend itself to precise definition
automatically resolving every case."). One manifestation of that
confusion has resulted from language in early opinions that
appeared to imply that the "hardship" referred to by the statute
must be personal to the specific property owner. See 165 Augusta
Street, Inc. v. Collins,
9 N.J. 259, 263 (1952) ("It is now
settled that under subparagraph (c) . . . in order to support the
grant of a variance there must be a finding of unnecessary
hardship to the individual landowner.").
That personal connotation of "undue hardship" appears to
have prompted this Appellate Division panel to assume that the
basis for petitioner's claim of hardship was the desire to have a
diving board in his pool. The court observed that "[w]ere this a
'hardship' c(1) variance, it would have to be shown that the need
for an oversize pool, said to be generated primarily to allow use
of a diving board, was a hardship sufficient to support the
[variances]." Our case law, however, has clarified the point,
emphasizing that personal hardship is irrelevant to the statutory
standard, and that the 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. As this Court explained in Isko v. Planning Board of
Livingston:
There is no showing in the record of any
exceptional narrowness, shallowness, or shape
of the hospital tract, or exceptional
topographic condition of the land or any
other extraordinary physical condition
thereof which would cause undue hardship if
the height restriction of the zoning
ordinance were enforced. Only recently this
Court declared that hardship personal to the
owner which is unrelated to the physical
characteristics of the land is not
contemplated by subsection (c) and does not
constitute sufficient ground for the granting
of a variance under that subsection.
[
51 N.J. 162, 174 (1968), abrogated on other
grounds, Commercial Realty & Resources Corp.
v. First Atl. Properties Co.,
122 N.J. 546
(1991).]
See also Place v. Board of Adj. of Saddle River,
42 N.J. 324, 331
(1964) ("The board argues that financial hardship is not a reason
recognized in law for granting a variance. But in our view this
argument is irrelevant in this case because the hardship to which
subsection (c) of the statute refers must arise by reason of one
of the specified conditions of the property."). Accord Home
Builders Ass'n v. Borough of Paramus,
7 N.J. 335, 343 (1951);
Loscalzo v. Pini,
228 N.J. Super. 291, 303 (App. Div. 1988),
certif. denied,
118 N.J. 216 (1989), abrogated on other grounds,
Coventry Square, Inc. v. Westwood Zoning Bd. of Adj.,
138 N.J. 285 (1994); Hill Homeowners Ass'n v. Passaic Zoning Bd. of Adj.
of Passaic,
134 N.J. Super. 107, 109 (App. Div. 1975). The
desire for a diving board, which influenced the applicant's
decision to install an eighteen-by-thirty-five-foot pool,
diverted the Appellate Division's focus from the size and
conditions of the property that constituted the statutorily
authorized reasons why the strict enforcement of the ordinance's
setback and area provisions could satisfy the undue hardship
standard.
A second misconception about the term "undue hardship," not
directly germane to this appeal, is the belief that an applicant
seeking a variance under subsection (c)(1) must prove that
without the variance the property would be zoned into inutility.
See Trinity Baptist v. Louis Scott Holding Co., 219 N.J. Super.
490, 499 (App. Div. 1987) ("Undue hardship involves the
underlying notion that no effective use can be made of the
property in the event the variance is denied."). That variant of
hardship typically has been offered to support the grant of a use
variance. See Medici v. BPR Co.,
107 N.J. 1, 17 n.9 (1987). The
misperception that evidence of inability to use property in
conformity with the ordinance is essential to the grant of a
subsection (c)(1) hardship variance, however, derives from the
period during which use variances could be sought pursuant to
either subsection (c) or (d) of the predecessor statute, see
Commercial Realty & Resources Corp. v. First Atl. Properties Co.,
122 N.J. 546, 554-57 (1991), and traces back to the period prior
to the 1948 amendments to the land-use statutes, L. 1948, c. 305,
when evidence of undue hardship to support a use variance
consisted of proof that the property could not reasonably be
adapted to a conforming use. See Bressman v. Gash,
131 N.J. 517,
531 (1993) (Stein, J., concurring).
Accordingly, the principle is now firmly established that
"[a] c(1) variance requires proof of the 'positive criteria,'
which are predicated on 'exceptional and undue hardship' because
of the exceptional shape and size of the lot." Bressman, supra,
131 N.J. at 522-23. As the Court observed in Kaufmann v.
Planning Board of Warren,
110 N.J. 551, 562 (1988): "Typically,
the contention is that the strict enforcement of the zoning
ordinance, in view of that property's unique characteristics,
imposes a hardship that may inhibit the extent to which the
property can be used." (quoting Davis Enterprises v. Karpf,
105 N.J. 476, 493 (1987) (Stein, J., concurring)).
A collateral issue, implicated by the Appellate Division's
emphasis on the applicant's ability to have installed a
conforming in-ground pool, concerns whether the need for the
variance is caused by the exceptional condition of the property
or by the size of the structure proposed by the applicant. That
issue is highlighted by the comments in the Appellate Division
opinion that imply that if the applicant could have constructed a
conforming pool then the statutory "hardship" standard cannot be
satisfied. That reasoning is flawed, and may find its origins in
the early use variance cases in which "hardship" typically was
proved by demonstrating that the property could not be put to a
conforming use. See Brandon, supra, 124 N.J.L. at 149.
In the bulk variance context, however, the statute provides
plainly that the causation element that the applicant must
satisfy relates to the unique condition of the property. On that
point, the statutory language could not be clearer:
(1) Where: (a) by reason of exceptional
narrowness, shallowness or shape of a
specific piece of property, or (b) by reason
of exceptional topographic conditions . . .
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 . . .
exceptional and undue hardship upon[] the
developer of such property, [the board of
adjustment shall have the power to grant] . .
. a variance from such strict application of
such regulation so as to relieve such . . .
hardship."
[N.J.S.A. 40:55D-70(c)(emphasis
supplied).]
Under the statute, 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.
See Place, supra, 42 N.J. at 331 ("[T]he hardship to which
subsection (c) of the statute refers must arise by reason of one
of the specified conditions of the property."). That clear
demand of the statute does not make irrelevant the size of the
structure that the variance is intended to permit. In a given
case, the dimensions of a proposed structure may be so unusual or
atypical that the applicant will be unable to demonstrate to the
board that it is the unique condition of the property that causes
the need for a variance. Accordingly, in a (c)(1) variance
context, a board of adjustment or a reviewing court should
consider whether the structure proposed is so unusually large
that its size, rather than the unique condition of the property,
causes the need for a variance. Contrary to the Appellate
Division's implication, that the proposed structure does not
conform to the ordinance is neither decisive nor relevant to the
causation question. Obviously, no variance application would be
filed if the structure were conforming.
Rather, the focus of the board's inquiry should be on
whether the unique property condition relied on by the applicant
constitutes the primary reason why the proposed structure does
not conform to the ordinance. See Bressman, supra, 131 N.J. at
521 (noting that shallowness of lot created need for rear-yard
setback variance). On this record, the applicant's contention was
that the exceptional narrowness and small size of his property,
in comparison with the minimum width and area requirements of the
zoning ordinance, precluded his compliance with the setback and
area requirements applicable to swimming pools.
The subsection (c)(2) variance standard, added to the
statute by the Legislature in 1984, L. 1984, c. 20, provides an
alternative ground for the grant of bulk or dimensional
variances. Subsection (c)(2) provides that
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, [the
board of adjustment may] grant a variance to
allow departure from regulations pursuant to
article 8 of this act.
The statute contemplates that even absent proof of "hardship"
pursuant to subsection (c)(1), a bulk or dimensional variance
that advances the purposes of the MLUL can be granted if the
benefits of the deviation outweigh any detriment. As Justice
O'Hern observed in Kaufmann, supra, 110 N.J. at 563:
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.
Whether a dimensional variance is sought under subsection
(c)(1) or (c)(2), the applicant also must satisfy the familiar
negative criteria:
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).]
In Ward v. Scott,
11 N.J. 117, 126 (1952), this Court
characterized the statutory negative criteria as "the fixed and
far reaching protective restriction" intended as an essential
safeguard to prevent the improper exercise of the variance power.
See Medici, supra, 107 N.J. at 22. In the context of this
record, the statutory mandate that the grant of the variance
occur "without substantial detriment to the public good" focuses
on the impact the variance will have on the specific adjacent
properties affected by the permitted deviations from the
ordinance. 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. Id. at 21. Unlike use
variances, reconciliation of a dimensional variance with the zone
plan and zoning ordinance is a relatively uncomplicated issue,
and depends on whether the grounds offered to support the
variance, either under subsection (c)(1) or (c)(2), adequately
justify the board's action in granting an exception from the
ordinance's requirements.
Finally, 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. That principle was explained by this Court in
Kramer v. Board of Adjustment of Sea Girt,
45 N.J. 268, 296-97
(1965):
In these highly controversial and
oftentimes debatable zoning cases the courts
must recognize that local officials 'who are
thoroughly familiar with their community's
characteristics and interests and are the
proper representatives of its people are
undoubtedly the best equipped to pass
initially on such applications for variance.'
Therefore, the law presumes that boards of
adjustment and municipal governing bodies
will act fairly and with proper motives and
for valid reasons. . . .
Such public bodies, because of their
peculiar knowledge of local conditions must
be allowed wide latitude in the exercise of
delegated discretion. Courts cannot
substitute an independent judgment for that
of the boards in areas of factual disputes;
neither will they exercise anew the original
jurisdiction of such boards or trespass on
their administrative work. So long as the
power exists to do the act complained of and
there is substantial evidence to support it,
the judicial branch of the government cannot
interfere. A local zoning determination will
be set aside only when it is arbitrary,
capricious or unreasonable. Even when doubt
is entertained as to the wisdom of the
action, or as to some part of it, there can
be no judicial declaration of invalidity in
the absence of clear abuse of discretion by
the public agencies involved.
[Citations omitted.]
The principle articulated by this Court in Kramer reflects a
pragmatic assumption that local boards of adjustment ordinarily
will not grant variances that would be substantially detrimental
to neighboring properties or that are incompatible with the
zoning plan, nor will they deny variances where the proofs
incontestably establish the need for variance relief and
demonstrate no threat to the neighborhood or zone plan. The
deference to local boards contemplated by Kramer is not intended
to be applied rigidly or categorically, and is predicated on the
existence of adequate evidence in the record supporting the
board's determination either to grant or deny variance relief.
Nevertheless, courts ordinarily should not disturb the
discretionary decisions of local boards that are supported by
substantial evidence in the record and reflect a correct
application of the relevant principles of land use law.
Application of the foregoing legal principles to this record
persuades us that the decision of the North Caldwell Board of
Adjustment must be sustained. The Board's conclusion that "the
proposed pool size was reasonable in scale and fairly typical for
such installations" appears to be adequately supported by the
record and undoubtedly reflects to some extent the Board's own
experience with variance applications for swimming pools.
Accordingly, the Board's focus was on whether the exceptional
narrowness of the lot, combined with the effect of the existing
driveway and garage along the northerly sideyard, rendered the
strict enforcement of the setback and land coverage ordinance
requirements an undue hardship on the applicant. The Board's
conclusion that those unique conditions of Calabrese's property
caused the need for variance relief is amply supported by the
record. The property's rear yard width of 77.9 feet is 22.1 feet
narrower than the minimum width permitted by ordinance, and many
properties in the immediate vicinity of Calabrese's property are
significantly wider than the minimum width. Even with its
substandard width, but for the existing garage the pool could
have been relocated approximately seven and one-half feet closer
to the northerly sideline, decreasing substantially the need for
a sideyard variance. If the width of Calabrese's property were
conforming -- 100 feet wide rather than 77.9 feet -- the pool
could have been set back twelve additional feet from the sideyard
and there would have been no need for any side yard setback
variance.
Similarly, if the width of the property were conforming
rather than substantially undersized, the rear yard area, which
governs the permitted size of swimming pools, would be
substantially larger than the 4446 square feet calculated by the
Board. A rough estimate based on the survey of the property
submitted to the Board indicates that if the rear lot line were
at least 100 feet wide, the rear yard area would be in excess of
5700 square feet, with the result that the proposed pool would be
approximately eleven percent of the rear yard area. In that
context, any need for an area variance would have been de
minimis.
The need for a four-foot-rear-yard variance for the
southerly end of the pool would not appear to be eliminated even
if the property's width were conforming. However, the relatively
short depth of the property's rear yard -- about fifty-seven feet
-- obviously has been influenced irrevocably by the narrowness of
the property. The approximate dimensions of the one-family
residential dwelling existing on the property -- sixty-four feet
in depth by twenty-four feet in width -- unquestionably were
dictated by the property's unusual narrowness. A residential
structure built on a conforming lot could have been constructed
with a greater width and less depth, resulting in a wider rear
yard and a greater setback for the proposed pool. The Board's
conclusion that the property's unusual narrowness and shape
justified the grant under subsection (c)(1) of setback and area
variances adequately is supported by the record.
The Board also determined that the dimensional variances
could be sustained under subsection (c)(2), reasoning that the
removal of the existing above-ground pool and deck and their
replacement with an average-sized in-ground pool is consistent
with "promotion of a desirable visual environment" in the Borough
and "is found to advance at least the safety and visual purposes
of zoning." The Board further concluded that those benefits were
not outweighed by any detriment that would result from the grant
of the variances. We find that conclusion also is supported by
sufficient evidence in the record.
Concerning the negative criteria, the Board considered in
its assessment of the effect of the variance on adjacent
properties the existence of a substantial evergreen hedge along
the southerly sideline, and imposed as a condition of the rear
yard setback variance the planting of a six-foot evergreen
hedgerow along the rear line to supplement the existing stockade
fence. The Board determined that no dwellings were close enough
either to the rear lot line or southerly side line to observe the
proposed pool or to be adversely affected by the grant of the
variances, and concluded that the grant of the variances were
"entirely consistent with the zone plan and zoning ordinance and
not in the least bit damaging in that respect." The Board
observed that "any permission for a variance may have some
tendency to impair residential character, utility or value. Here
there seems to be no such tendency, but even if there were, the
tendency must be 'substantial' in order to defeat the variance."
We find adequate support in the record for the Board's conclusion
that the negative criteria were satisfied.
Consistent with our recognition that reviewing courts
ordinarily should defer to decisions by local boards of
adjustment that are adequately supported by the record, Kramer,
supra, 45 N.J. at 296-97, we are fully persuaded that the
variances granted by the North Caldwell Board of Adjustment must
be sustained. The Board's thorough and comprehensive findings
demonstrate a careful adherence to the principle that the grant
of subsection (c)(1) "hardship" variances requires proof that the
need for the variances is occasioned by the unique shape,
narrowness, shallowness or topography of the property or by any
other "extraordinary situation" uniquely affecting the property
or structures existing thereon. The proofs before the Board
demonstrated that it was not the size of the proposed pool, but
rather the unusual narrowness of the applicant's property in
relation to the ordinance's minimum width and the width of
properties in the vicinity, combined with the existing structures
on the property, that constituted the reasons why the setback and
area variances were required. Nor did any evidence in the record
contradict the Board's findings that the negative criteria were
satisfied.
We reverse the judgment of the Appellate Division and
reinstate the judgment of the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and COLEMAN join in JUSTICE STEIN'S opinion.
Graphic file number 0 named lang.pcx with height 824 p and width 112 p Left aligned
NO. A-20 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOSEPHINE F. LANG,
Plaintiff-Respondent,
v.
ZONING BOARD OF ADJUSTMENT
OF THE BOROUGH OF NORTH CALDWELL,
Defendant-Appellant,
and
ROBERT CALABRESE,
Defendant.
DECIDED July 19, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINIONS BY
Footnote: 1 1Although the record did not reveal the distance of Lang's dwelling from her rear property line or the distance of the dwellings on the lots abutting Calabrese's southerly sideline from their rear property lines, the Court was informed of those distances by counsel after oral argument.