Berninger v. Board of Adjustment of Midland Park

• Decision Date: 27 February 1991
• Parties: Mark BERNINGER and Carol Berninger, his wife, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF MIDLAND PARK, Mayor and Council of Midland Park, and Johanna Vogel, Defendants, and Elias Noury and Marie Noury, his wife, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 401

254 N.J.Super. 401

603 A.2d 954

Mark BERNINGER and Carol Berninger, his wife, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF MIDLAND PARK, Mayor and Council of Midland Park, and Johanna Vogel, Defendants and Elias Noury and Marie Noury, his wife, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Dec. 13, 1990.

Decided Feb. 27, 1991.

John C. McGlade, Fort Lee, for defendants-appellants (Lessack & McGlade, attorneys, John C. McGlade, on the brief).

William T. Smith, Franklin Lakes, for plaintiffs-respondents (Hook, Torack & Smith, attorneys, William T. Smith, on the letter brief).

Before Judges GAULKIN, SHEBELL and SKILLMAN.

PER CURIAM.

Defendants, Elias Noury and Marie Noury, appeal from a judgment which invalidates an exception or variance granted in 1939 to a predecessor-in-title to use the property as a two-family house. The grant was with the express condition that the premises would revert back to a single-family house when the applicants sold the property.

This litigation arose after the Nourys contracted to purchase the house from Johanna Vogel. Mark Berninger and Carol Berninger, nearby neighbors, protested to the zoning officer that the premises must only be used as a single-family house. The zoning officer issued his written opinion that use of the property must be so limited. On March 18, 1988, Vogel filed an application with the Midland Park Board of Adjustment (Board of Adjustment) for an interpretation of the status of the house, thereby appealing from the decision of the zoning officer. Following a hearing, the Board of Adjustment reversed the zoning officer's decision on the basis that the Board lacked jurisdiction to question the merits of the 1939 variance or exception grant.

The Berningers, on August 19, 1988, filed a complaint in lieu of prerogative writs in the Law Division. Vogel and the Nourys filed a joint answer. The Board of Adjustment and the municipality notified the Law Division that they did not intend to participate in the litigation. The Law Division judge, following oral argument, held in a written opinion that while the condition was illegal, so was the exception granted to the predecessor-in-title since there was no proof in the record that the governing body acted properly in 1939. The judge, therefore, reversed the decision of the Board of Adjustment; he held that the 1939 grant was void and subject to attack at anytime. We reverse.

The property in question presently consists of a two-family dwelling located at 148 Vreeland Avenue, Midland Park. The neighborhood is zoned for single-family dwellings. The Berningers reside next door to the subject premises. The property has been utilized as a two-family dwelling since 1939 when the owner of the property, Minerd DeJong, obtained from the governing body an exception to convert the property from a single-family residence to a two-family residence. The record of the "exception" consists only of the minutes of a single meeting of the governing body.

According to the 1939 minutes, "the Board of Adjustment recommended that an exception be granted to Minerd DeJong, to allow his premises at 148 Vreeland Avenue to be used as a two-family dwelling." The mayor remarked that he had seen several applications granted to convert single-family houses to two-family houses and felt that "unless something was done, there would no longer be a one-family residence zone and the zoning ordinance would be worthless." He suggested that any further approvals should be subject to the condition that "should the premises in question be sold, then the property would revert back to its original one-family status." The governing body adopted a resolution stating:

That the recommendation of the Board of Adjustment be and is hereby ordered approved, with the provisions that if the said MINERD DE JONG should sell the above-mentioned premises, then the said premises shall revert back to its original use, and shall be used only as a one-family dwelling.

No evidence was presented concerning the proofs submitted in 1939 to the Board of Adjustment or the reasons for the Board's recommendation that the "exception" be granted. A long-time resident of Vreeland Avenue testified before the present Board of Adjustment that he believed the exception was granted because, at the time, Minerd DeJong was in poor health.

Tenants have continuously occupied the second floor of the premises since June 1939. The present tenancy began in June 1950. Minerd DeJong died in 1948, still owning the property. His widow survived until 1956. Between 1956 and 1960 the first-floor premises were also occupied by tenants, apparently under the ownership of Mrs. DeJong's estate.

Peter and Johanna Vogel purchased the premises in September 1960. In March 1961, two neighbors addressed a letter to the mayor and governing body stating that to the best of their knowledge, "this dwelling was granted a two-family status a number of years ago only for the lifetime of the person then owning it" and, since the owner had passed away, the zoning ordinance should be enforced. The matter came up at a borough council meeting on May 11, 1961, at which time the borough attorney stated that "the matter was being studied." No legal proceedings appear to have been undertaken prior to the present litigation. Peter Vogel died in 1982. His widow, Johanna, moved in 1987, as she could no longer maintain the premises.

The principal issue in this case is whether the Law Division judge erred in vacating the variance or exception granted fifty years earlier, on the theory that there was no initial justification for the grant. It is not disputed that the condition attached to the variance is invalid. Plaintiffs, however, argue that setting aside the condition requires setting aside the variance or exception itself.

A condition attached to a variance or exception must be reasonably calculated to achieve some legitimate land use purpose. DeFelice v. Zoning Bd. of Adjustment, 216 N.J.Super. 377, 381, 523 A.2d 1086 (App.Div.1987); Soho Park & Land Co. v. Belleville, 6 N.J.Misc. 683, 685, 142 A. 547 (Sup.Ct.1928); 3 Rathkopf, The Law of Zoning and Planning, § 40.02 at 40-4 (4 ed. 1987). Therefore, a condition which limits the life of a variance to ownership by a particular individual is patently illegal, as it advances no legitimate land use purpose. DeFelice, 216 N.J.Super. at 381-83, 523 A.2d 1086.

In DeFelice we excised the unlawful condition without setting aside the underlying variance. Id. at 383, 523 A.2d 1086. In Orloski v. Planning Bd. of Borough of Ship Bottom, 234 N.J.Super. 1, 559 A.2d 1380 (App.Div.1989), we again stated that "an unreasonable condition, under proper circumstances, may be stricken or removed even if the variance benefit has been accepted." Id. at 2, 559 A.2d 1380. The statement to the contrary in North Plainfield v. Perone, 54 N.J.Super. 1, 10-11, 148 A.2d 50 (App.Div.), certif. denied, 29 N.J. 507, 150 A.2d 292 (1959), must be limited to the situation existing there, namely that without the condition the variance would alter the character of the neighborhood or do violence to the zoning plan.

Plaintiffs rely on the case of V.F. Zahodiakin Eng'g Corp. v. Board of Adjustment, Summit, 8 N.J. 386, 86 A.2d 127 (1952), as authority for their position that the variance or exception is void and must be set aside. In Zahodiakin, the plaintiff received a variance in 1942 to operate a war-related laboratory and manufacturing facility in a residential zone, upon the condition that the variance would terminate upon the discontinuance of the operation or the sale of the premises. Id. at 390-91, 86 A.2d 127. The plaintiff had an opportunity to sell the premises and asked that the condition be excised. Id. at 392, 86 A.2d 127. When the Board refused, plaintiff filed a complaint seeking nullification of the condition on the ground that it was an illegal restraint on alienation. Id. The Board of Adjustment and the City counterclaimed for an order terminating the variance. The Supreme Court held that the variance was illegal because the board and governing body never even purported to apply the statutory criteria for a variance. Id. at 395, 86 A.2d 127. The Court emphasized that:

Here, the action taken was not a mere irregular exercise of the quasi-judicial function residing in the local authority. The proceeding was wholly beyond the statute. It was not designed to advance the statutory policy, but to effectuate a contractual undertaking for private benefit in disregard of it. It constituted an arrogation of authority in defiance of the statute and the ordinance. Special hardship from unique circumstances within the principle of the statute and the ordinance was concededly not a point of inquiry. Considerations dehors the statute controlled. There was no pretense of the exercise of the statutory function. Whim and caprice rather than the reason and spirit of the statute determined the course taken. There was a deliberate breach of jurisdiction. [Id.].

In the present case, the record does not disclose what proofs were presented to the Board of Adjustment. DeJong may have submitted proofs to the Board which justified the variance or exception under then existing law. The record does not disclose the ordinance in effect in 1939. At that time, state law differentiated between variances and special exceptions. L. 1928, c. 274, § 9. Each was designed to achieve different purposes and required different proofs. See Tullo v. Millburn Tp., 54 N.J.Super. 483, 490-91, 149 A.2d 620 (App.Div.1959). The record is not clear whether the 1939 ordinance treated two-family homes as special exceptions; therefore, we are unable to determine whether the relief granted was by way of special exception or variance. This case is different than Zahodiakin; there the Court was compelled by the record to conclude that the underlying proceedings were so irregular as to be void....