Morgan v. W. Cape May Combined Zoning & Planning Bd.

• Decision Date: 24 February 2021
• Docket Number: DOCKET NO. A-4573-19
• Parties: RONALD C. MORGAN and BARBARA G. MORGAN, h/w, Plaintiffs-Appellants, v. WEST CAPE MAY COMBINED ZONING AND PLANNING BOARD, Defendant-Respondent, and RONALD E. BAKER, Defendant/Intervenor-Respondent.
• Court: New Jersey Superior Court — Appellate Division

RONALD C. MORGAN and BARBARA G. MORGAN, h/w, Plaintiffs-Appellants, v. WEST CAPE MAY COMBINED ZONING AND PLANNING BOARD, Defendant-Respondent,andRONALD E. BAKER, Defendant/Intervenor-Respondent.

DOCKET NO. A-4573-19

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued February 9, 2021

February 24, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0067-20.

Ronald C. Morgan, appellant, argued the cause pro se.

Richard M. King, Jr., argued the cause for respondent.

Andrew D. Catanese argued the cause for intervenor-respondent (Monzo Catanese Hillegass, P.C., attorneys; Andrew D. Catanese and Kathryn A. Monzo, on the brief).

PER CURIAM

Plaintiffs Ronald and Barbara Morgan (collectively plaintiffs) appeal from the Law Division's July 16, 2020 order dismissing their action in lieu of prerogative writs against defendant West Cape May Combined Zoning and Planning Board (the Board) and defendant-intervenor Ronald Baker (Baker). We affirm.

Baker owns a 12,610 square foot lot in the Borough of West Cape May (Borough). The property is located in the R-1 Urban Residential zoning district, which is intended to be the densest residential district in the Borough. Although lots in this district are only required to be 5000 square feet, most of the lots have less square footage.

Baker filed an application with the Board seeking to subdivide his lot into two lots. Lot A would be 7610 square feet and Lot B would be 5000 square feet. As proposed, Lot B fully complied with all of the Borough's zoning requirements. Lot A has an existing home on it and would require a variancefor lot frontage because it would have slightly less than forty-seven feet of frontage while fifty feet is required.¹ Lot A would also require, almost equally, minor variances for lot width and other setbacks.

Plaintiffs live next to proposed Lot B. At the present time, Lot B is mostly landscaped and provides approximately seventy-three feet of separation between plaintiffs' property line and Baker's house on Lot A. A great deal of the landscaping would be removed to make room on Lot B for a residence but, as discussed below, Baker agreed to work with the Borough's arborist to preserve as many mature trees as possible on the new lot.

Baker provided notice of his application to plaintiffs and other nearby residents. He also gave notice to the Borough's Historic Preservation Commission (HPC) and, later, the Board sent a copy of Baker's entire application package to Norm Roach, the HPC's liaison with the Board, who also served as the Borough's zoning officer. Roach attended both of the Board's meetings concerning the application and voiced no opposition to Baker's proposal.

The Board held two public hearings concerning Baker's application. At the first hearing, Baker presented the testimony of Dante Guzzi, an engineer andprofessional planner. N.J.S.A. 40:55D-70 authorizes local zoning and planning boards to grant variances from zoning ordinances. N.J.S.A. 40:55D-70(c) defines two categories of variances: N.J.S.A. 40:55D-70(c)(1), known as the "hardship variance," and N.J.S.A. 40:55D-70(c)(2), known as the "flexible or bulk variance." Guzzi testified that the Board could consider and approve Baker's application under both N.J.S.A. 40:55D-70(c)(1) and (c)(2).

By way of background, N.J.S.A. 40:55D-70(c)(1) states:

The board of adjustment shall have the power to:

(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, 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[.]

The above hardship is known as the "positive criteria" required for a (c)(1) variance. See Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 575 (2005); Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97, 102 (1984).The applicant bears the burden of establishing that the particular conditions create a hardship. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013). Hardship, under (c)(1), "refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise." Jock, 184 N.J. at 590.

Applicants for a variance under (c)(1) must also satisfy the "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); see alsoNash, 96 N.J. at 102.]

A zoning board must balance these negative criteria against the positive criteria. See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. Div. 1963).

Guzzi testified that minor variances were needed on proposed Lot A because there was a historic home, built in 1872, on the left side of the property. That residence did not currently meet the side yard and front yard setback requirements because it was built at an angle to the side property line. Becausethese deficiencies could not be cured without demolishing and rebuilding the historic home, Guzzi opined that this was a clear hardship under N.J.S.A. 40:55D-70(c)(1) which supported the approval of the variances Baker sought in his application. As discussed below, Guzzi testified there would be no negative impact if the application were granted.

Guzzi also testified that a subdivision of the oversized property could be approved under N.J.S.A. 40:55D-70(c)(2). Our Supreme Court succinctly described the test for granting a (c)(2) variance as follows:

N.J.S.A. 40:55D-70(c)(2) permits a variance for specific property, if the deviation from bulk or dimensional provisions of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment. The applicant bears the burden of proving both the positive and negative criteria.

[Ten Stary Dom, 216 N.J. at 30.]

Satisfaction of the positive criteria requires "proof that the characteristics of the property present an opportunity to put [it] more in conformity with the development plans and advance the purposes of zoning." Ibid. The purposes of zoning include promoting "public health [and] safety" and a "desirable visual environment"; providing "adequate light, air and open space"; securing "safety from fire, flood, [and] panic"; and providing "sufficient space in appropriatelocations for a variety of . . . uses . . . in order to meet the needs of all New Jersey citizens." N.J.S.A. 40:55D-2. As to the negative criteria, the applicant must prove "that the variance would not result in substantial detriment to the public good or substantially impair the purpose of the zone plan." Ten Stary Dom, 216 N.J. at 30.

Significantly, under this "more flexible test[,]" an applicant for a (c)(2) variance need not demonstrate hardship. Price v. Himeji, LLC, 214 N.J. 263, 297 (2013) (citing Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 57 (1999)); Jacoby v. Zoning Bd. of Adjustment of Englewood Cliffs, 442 N.J. Super. 450, 470 (App. Div. 2015). In addition, "the magnitude of the deviation from the . . . dimensional requirements of the zoning ordinance and the impact on the zoning plan are often a matter of degree" and, as such, "a board's consideration of a variance should recognize that fact." Ten Stary Dom, 216 N.J. at 32 (citing Chirichello v. Zoning Bd. of Adjustment, 78 N.J. 544, 561 (1979)).

As our Supreme Court explained over thirty years ago:

By definition . . . 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 not be on the characteristics of the landthat, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.

[Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 563 (1988) (emphasis omitted).]

In short, the granting of a "(c)(2) variance will stand if, after adequate proofs are presented, the Board concludes that the 'harms, if any, are substantially outweighed by the benefits.'" Jacoby, 442 N.J. Super. at 471 (quoting Kaufmann, 110 N.J. at 565).

At the hearing, Guzzi testified that Baker's application satisfied both the positive and negative criteria of N.J.S.A. 40:55D-70(c)(2). As it existed currently, Baker's lot was more than twice the size of most of the other lots on his block. Therefore, Baker's plan to subdivide the large lot into two conforming lots was in keeping with the rest of the properties in the area. In addition, Guzzi found that approximately 40% of the homes on Baker's street had less frontage than required under the zoning...