NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3622-07T33622-07T3
THOMAS WILSON,
Plaintiff-Appellant,
v.
BRICK TOWNSHIP ZONING BOARD
OF ADJUSTMENT,
Defendant-Respondent.
______________________________________________
Argued December 3, 2008 - Decided
Before Judges Stern, Payne and Lyons.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-119-07.
Robert J. Pansulla argued the cause for appellant (Gaccione, Pomaco & Malanga, attorneys; Mr. Pansulla, on the brief).
Kenneth B. Fitzsimmons argued the cause for respondent (Sinn, Fitzsimmons, Cantoli & West, P.A., attorneys; Mr. Fitzsimmons, of counsel and on the brief).
The opinion of the court was delivered by
LYONS, J.A.D.
Plaintiff, Thomas Wilson, appeals from an order dismissing his complaint with prejudice and affirming the denial by defendant, Brick Township Zoning Board of Adjustment, of plaintiff's application for seven bulk zoning variances. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Plaintiff owns property located in Brick Township, which is in an R-5 zone, permitting single-family residential structures. Plaintiff's house is a two-story frame dwelling set back forty-one feet from the street and eighteen feet from the rear property line. The rear of the property borders on Barnegat Bay and plaintiff has title to a riparian grant covering the land between the end of the property line and the bulkhead, which is constructed 2.48 feet beyond the property line.
In 1999, at the time that plaintiff purchased the property, there was an existing deck on the premises that covered most, but not all, of the back yard, and that extended beyond the rear property line past the bulkhead. After purchasing the property, plaintiff expanded the deck so that it covered the entire back yard. The deck was also raised fifty-four inches in height, and a swimming pool was built into the deck. Plaintiff constructed the improvements without obtaining the necessary permits, which led to litigation and his eventual payment of fines.
Plaintiff's construction did not comply with the Township's bulk zoning requirements regarding the location of the improvements. In July 2006, plaintiff filed an application with defendant for variances seeking approval of the previously constructed deck and swimming pool. Specifically, the bulk variances sought by plaintiff were:
Item
Required
Provided
rear yard setback (deck)
15 feet
0 feet
rear yard setback (pool)
5 feet
0 feet (within existing deck)
side yard setback (dwelling)
5 feet (one side) / 12 feet (total)
5.1 feet (one side) / 11 feet (total)
side yard setback (deck)
5 feet (one side) / 12 feet (total)
0 feet (one side) / 5.6 feet (total)
side yard setback (pool)
5 feet
3.4 feet (within existing deck)
side yard setback (shed)
4.1 feet (1/2 height)
3.3 feet
maximum lot coverage
35%
49.7%
The Township's zoning officer issued a report on the application, and the proper notice of hearing was published as required by law.
On November 1, 2006, a hearing was held on the application, where plaintiff produced the expert testimony of Charles Lindstrom, an engineer and professional planner. Mr. Lindstrom testified that the dwelling was constructed in order to provide a large front yard (forty-one feet from the street) and a much smaller back yard (eighteen feet from the property line). Plaintiff's proposal was to remove the portion of the deck that extended past the bulkhead, bringing it back to the end of the bulkhead. He further testified that there was a minor deficiency in the side yard setback requirement of the dwelling due to its construction prior to a recent amendment to the ordinance. The current ordinance required a twelve foot combined side yard setback, whereas the dwelling had only an eleven foot combined side yard setback.
Mr. Lindstrom concluded that fitting a pool within the deck as it existed in 1999 in conformity with the setback requirements would have been "impossible." Mr. Lindstrom also noted in his testimony that "basically, the entire neighborhood is developed exactly as the Wilsons are developed with a raised deck and a pool." He further emphasized this point by testifying that removal of the deck and pool would render plaintiff's property "out of character with the neighborhood." In referring to photographs admitted into evidence, Mr. Lindstrom testified that the deck and pool were consistent with the neighboring adjacent properties, and did not infringe upon light, air, and open space. While Mr. Lindstrom acknowledged that he did not survey every property in the neighborhood, he testified that he conducted his investigation by visual inspection of the neighboring properties from plaintiff's dock and by examining aerial photographs. He noted plaintiff's pool could not be seen from the street or the bay; the pool could only be seen from the vantage point of a neighboring deck that was similarly arranged.
Mr. Lindstrom also testified that granting the variance would "promote [a] desirable visual environment." He went on to state:
I think if you look at the photos, you see that every house is harmonious in the sense that they have these living areas and it is a desirable visual environment. I think that actually, adequate light, air and open space is maintained because of the proximity to the Barnegat Bay and this is their living space on the lot. I don't think light, air and open space is infringed upon with this lot having this condition. All the lots have the same condition.
Plaintiff acknowledged through counsel that any variances granted by the Board would have to be conditioned upon approval by the New Jersey Department of Environmental Protection (DEP), pursuant to the Coastal Area Facility Review Act (CAFRA).
In its resolution denying the bulk variances, defendant stated:
[t]he Board finds and determines that the existing pool was built after the property was acquired by the applicant without obtaining a permit. The deck was enlarged by the applicant without obtaining a permit.
Although there was testimony about adjoining properties having similarly situated decks and pools, no proof was submitted as to whether the adjoining properties obtained appropriate building permits. Mr. Mizer, the Township Sub-Code Official, testified that the properties adjoining the applicant's property are not a good indication of the development of the properties in the entire neighborhood. The Board further finds that there was no testimony given regarding the necessity of having the pool situated in its present location. There was no testimony that a pool could not be built without variances. There was no testimony as to the possibility of reducing the size of the deck or pool. There was no testimony that the applicant could not provide adequate setbacks for the deck. The applicant has failed to provide any testimony to substantiate a hardship requiring the granting of the variances requested. The Board finds that any hardship was created by the applicant himself. The Board finds that the application is not in keeping with the Municipal Zoning Ordinance and Master Plan.
On January 2, 2007, plaintiff instituted suit by filing a complaint in lieu of prerogative writs. On or about February 5, 2007, defendant filed an answer.
On January 18, 2008, a trial was held, and on January 31, 2008, the court issued a written opinion upholding the decision of the Board. The trial court found that the reasons given by defendant for denial of plaintiff's seven variances were amply supported by competent and credible evidence in the record and defendant's denial of plaintiff's application was not arbitrary, capricious or unreasonable. A final order of judgment was entered on February 13, 2008, affirming the Board's resolution and dismissing plaintiff's complaint with prejudice. On March 27, 2008, plaintiff filed a Notice of Appeal.
On appeal, plaintiff presents the following arguments for our consideration:
POINT I:
RESPONDENT'S ACTIONS WERE ARBITRARY, CAPRICIOUS OR UNREASONABLE IN DENYING VARIANCE RELIEF UNDER THE CIRCUMSTANCES.
A. The minor bulk variances can be granted under a C(2) analysis.
B. The minor bulk variances can be granted under a C(1) analysis.
C. Reversal would be appropriate without remand.
In reviewing a decision to grant a variance, courts typically recognize that municipal bodies, "because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of their delegated discretion." Booth v. Bd. of Adjustment of Rockaway Tp., 50 N.J. 302, 306 (1967).
[T]he judicial role in reviewing a zoning ordinance is tightly circumscribed. There is a strong presumption in favor of its validity, and the court cannot invalidate it, or any provision thereof, unless this presumption is overcome by a clear showing that it is arbitrary or unreasonable.
[Harvard Ent., Inc. v. Madison Tp. Bd. of Adjustment, 56 N.J. 362, 368 (1970).]
Specifically,
[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.
[Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296-97 (1965).]
On appeal, the courts "will give substantial deference to findings of fact, [however,] it is essential that the board's actions be grounded in evidence in the record." Fallone Properties, L.L.C. v. Bethlehem Tp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004).
While a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable, legal determinations are not entitled to a presumption of validity and are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993).
Further, while expert testimony is often presented to a Board of Adjustment and is found helpful, a Board is not bound to accept the testimony of any expert. See El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 330 (App. Div. 1991), certif. denied, 127 N.J. 546 (1992).
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a municipality's Board of Adjustment is authorized to grant bulk zoning variances if the required criteria are met. N.J.S.A. 40:55D-70(c). Plaintiff argues that the variances applied for in this case should have been granted pursuant to N.J.S.A. 40:55(D)-70(c)(1) ("C1"), as well as N.J.S.A. 40:55D-70(c)(2) ("C2").
C2 Analysis
Plaintiff argues that he was entitled to the bulk variances sought pursuant to C2. C2 provides:
where in an application [for a variance] or [an] appeal relating to a specific piece of property the purposes 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, grant a variance to allow departure from regulations. . . .
[N.J.S.A. 40:55D-70(c)(2).]
The negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, the variance 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.
With respect to a C2 application, the Supreme Court has said:
[b]y 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. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting