Opinion
DOCKET NO. A-0634-11T1
03-26-2013
MARTY BUCKLEY, Plaintiff-Appellant, v. MARC GODLEWSKI and THERESA GODLEWSKI, and STONE HARBOR ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.
Mary D'Arcy Bittner argued the cause for appellant. Fred S. Dubowsky argued the cause for respondents Marc Godlewski and Theresa Godlewski. Andrew D. Catanese argued the cause for respondent Stone Harbor Zoning Board of Adjustment (Monzo Catanese, P.C., attorneys; Paul Kapish, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-47-11.
Mary D'Arcy Bittner argued the cause for appellant.
Fred S. Dubowsky argued the cause for respondents Marc Godlewski and Theresa Godlewski.
Andrew D. Catanese argued the cause for respondent Stone Harbor Zoning Board of Adjustment (Monzo Catanese, P.C., attorneys; Paul Kapish, on the brief). PER CURIAM
Plaintiff Marty Buckley appeals from a final Law Division judgment that upheld defendant Borough of Stone Harbor Zoning Board of Adjustment's (the Board) decision to grant a second hardship variance under N.J.S.A. 40:55D-70c(1) to defendants Marc and Theresa Godlewski. The variance permitted defendants to expand the dimensions of their duplex beyond those that the Board had permitted when it granted defendants their first variance. Having considered the record of defendants' second variance application and determined the Board misapplied relevant principles of land use law, we reverse and remand for further proceedings before the Board.
I.
Defendants own a duplex on Eighty-eighth street in the Borough of Stone Harbor. The duplex is on three lots designated as lots 84, 86.02, and 88.03 in block 88.03 on the Borough tax map (collectively "the property" or "defendants' property"). From a bird's-eye view, the property's shape resembles an extended flag atop a flagpole. The "pole" section, lot 84, is twenty-five feet wide, 110 feet deep, and fronts at the bottom on Eighty-eighth Street. The "flag" section consists of lots 86.02 and 88.03, each twenty-five feet wide and thirty-four feet deep, and is tucked behind two homes that front on Eighty-eighth Street. The two-story duplex is located on the "flag" section of the property and four off-street parking spaces are located on the "pole" section.
Plaintiff lives on Eighty-ninth Street and the rear of her lot is contiguous to the rear of defendants' middle lot, 86.02. The rear of defendants' duplex is 1.93 feet from the rear property line.
Defendants' property is in a Residential B zone. Section 560-9 of the Borough's zoning ordinance restricts buildings and uses in Residential B zones to single-family and duplex dwellings. Section 560-9 also requires that single-family dwellings have two side yards, the minimum width of each to be ten feet, and duplex dwellings to have two side yards, the minimum width of each to be twenty feet; that all structures have a minimum rear yard setback of twenty-five feet; and that structures not having flat roofs have a maximum height of thirty feet where the curb level is ten feet or more above mean sea level.
In August 2010 defendants decided to convert the duplex to a single-family dwelling. To accomplish the conversion, they applied to the Board for variances from the Residential B zone's requirements for lot area, lot frontage, rear yard setback, and minimum building size. The Board granted defendants' variance application on August 13, 2010. In its memorializing resolution dated September 10, 2010, the Board stated, among other things, that it had "jurisdiction to hear this matter"; and plaintiff "spoke in favor of the application, noting that she lives directly behind the property and has no objection."
The following month, on October 21, 2010, defendants filed their second variance application. In this application, defendants sought to expand the dimensions of the building beyond the variances they obtained in their first application. Four people testified at the December 3, 2010 hearing on defendants' second application: defendant Marc Godlewski; Charles Kona, defendants' engineer and planner; plaintiff; and plaintiff's witness, Robert Costello, the secretary of the planning commission in Lower Moreland Township, Pennsylvania, and a property owner in Brigantine, New Jersey.
Godlewski explained the differences between the first variance application, which the Board had approved, and the second, pending application. The new application proposed to increase the size of the bathroom in the master bedroom, relocate another bath, and relocate heating, ventilation, and air conditioning units. The revised, proposed plans eliminated a first floor deck on the easterly side of the house, and depicted changes to the second floor interior. Godlewski explained that the "originally approved plan for a three-bedroom, two-and-a-half bath home with an upper deck has not changed, and is still contained in the proposed plan." Godlewski further explained that the request "to enlarge the floor area of the home was not to increase the number of bedrooms or baths, but, simply, to increase the usability of each of the rooms by making them longer in area." Godlewski submitted as evidence the approved plans, proposed plans, a setback exhibit, a neighborhood study, rear building elevations, and a photograph of the property.
Defendants' engineer and planner, Kona, elaborated on the differences between the previously approved plans and the revised plans. He explained that defendants were seeking to "increase the habitable area of the dwelling and construct an open deck at the second story." Kona also explained the dimensional differences between the previously approved plans and the revised plans:
The dimension of the structure approved at your August meeting [was] 20.6 feet along the sidelines, that is the same dimension that we'll show in today's proposed plan. And 32.48 feet along the rear line. The dimensions of the structure proposed will be increased 3.97 feet in the westerly direction and 7.03 feet in the easterly direction, a total of 11 feet. The rezoning dimensions of the altered structure will be 20.6 feet along the sidelines, and 43.48 feet along the rear line, which is shown on the plan before you.
Each of the two floors will contain 896 square feet, which is 196 square feet above your minimum of 700 square feet. The dimensions of the second floor deck are
11.12 feet by 20.6 feet, the existing rear yard setback of 1.93 feet will be maintained and not exacerbated.
As summarized by the Board in its resolution granting the second variance application, Kona also testified:
(a) The plot plan submitted with Applicant's application depicts the improvements as proposed.Kona opined that the lot "satisfies the [c(1)(c)] provision, [because it] indicates what is structurally, lawfully existing thereon." (emphasis added).
(b) [T]he the architectural plans identified as Exhibit B . . . [show] the existing rear yard setback will not be reduced, though the house is proposed for expansion at the same setback.
. . . .
(d) Exhibit C depicts the buildable area of the lot in the event all setback requirements are met, resulting in a permitted building area of only 5' x 75' (375 sq. ft.).
(e) The open deck design on the easterly side of the property eliminates the previously approved first floor deck and will promote open space, light, and air for adjacent properties.
(f) Exhibit E . . . depicts what the Applicant had designed before scaling back the proposed project at the request of the adjacent property owner.
(g) Exhibit F assumes the Property has been expanded in accordance with Resolution 783-2010 [the First Approval], such that the "Easterly Addition 7.03" is an addition to what is already approved - it is not an addition to what is existing.
(h) The proposed addition will not significantly impact view of the adjacent
property because of existing structures and mature vegetation which currently restricts the neighbors' view corridors.
. . . .
(j) A c(1) [h]ardship variance is appropriate due to the unusual shape and size of the property, which results in 56% of the lot being located in the rear "flag" portion of the lot and which permits a buildable area of only 5' x 75'. The c(1) standard is also met by the location of the existing home on the lot.
. . . .
(l) The application satisfies the negative criteria because (i) the proposed structure satisfies side yard setbacks to the principal structure (excluding decks); (ii) adjacent structures are substantially set back and are buffered by existing vegetation, mitigating any negative impact on view corridors; and (iii) the lot will remain underutilized, as the occupied area will be only 20.9% whereas 25% is permitted. There is no substantial detriment to the zoning ordinance or plan.
Plaintiff opposed the second variance application. She explained that the proposed plan would "more than doubl[e] the width of the house, and that house sits [sixteen] inches from my property line." Plaintiff testified that the expansion of defendant's house would affect the view from her property because of the increased height and width; and would impose financial and aesthetic consequences for her property. She described the view from her back window or deck as looking at a wall or "a concrete bunker . . . going . . . right up against the property line." Plaintiff also expressed concern about whether she could grow flowers in the rear of her property.
Costello testified that as secretary of the planning commission in Lower Moreland Township, Pennsylvania, he had never approved a project that has only a sixteen inch rear yard setback. He explained that his planning board no longer approves flag lots, and that "if someone buys a flag lot, they buy it under the conditions knowing what the dimensions are, and what the buildable allow is." He asserted that the proposed plans in defendants' second application would devalue plaintiff's home and prevent air flow through her property.
The Board determined that the revised plans added eleven more feet to the width of the previously approved structure, but obstruction to the neighbors' view corridors were mitigated because the proposed first floor deck was eliminated. In total, the Board determined that only seven feet of solid structure would be added to the previously approved plans.
Following testimony, the chairman commented that defendants had received prior approval from the Board, but "[i]f it's still a duplex, then it should be reviewed tonight as presented, that is, an existing duplex proposed to become a single-family home." The chairman further commented that if the second application were approved, "both approvals will remain in effect . . . then both approvals would be in place until a construction permit is pulled, at which point the election of proceeding under one plan terminates the other."
The solicitor clarified for the Board that defendants' second application was to be "evaluated independently" of the prior application, and that only the facts on record at the December 3, 2010 hearing were to be considered. The solicitor also stated that the c(1) standard applied to, among other things, the exceptional shape or the "lawfully existing structures on the property."
The Board approved the variance under subsection c(1) by a vote of four to two, and rejected the c(2) variance with a tied vote of three to three. In its memorializing resolution, No. 789-2010, the Board concluded:
[(1)] [F]ailure to grant the requested relief would result in exceptional and undue hardship upon Applicant because of the small size and unique shape of the subject lot and due to the location of the existing structure proposed for expansion, which will not permit an addition to reasonably be located in conformance with the zoning ordinance; and
[(2)] there has been no determination by a majority of the Board that the purposes of the Municipal Land Use Law, including those cited by Mr. Kona (such as the conversion of a duplex to a single family home) would be advanced by a deviation from the Zoning Ordinance or that the benefits of the proposed deviation would substantially outweigh any detriment; . . .
[(3)] the relief . . . can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance of the Borough of Stone Harbor because the proposed structure will occupy only 20.9% of the lot whereas 25% is permitted. Additionally, the open deck design to the East will ensure that any adjoining property owners' open space, light, or air will not be unreasonably impacted, particularly when considered in light of the view corridors as depicted
. . . .
Plaintiff challenged the Board's action by filing a complaint in lieu of prerogative writs. Following oral argument, the court issued a written decision and entered a final judgment upholding the second variance.
II.
The powers of a Board of Adjustment are enumerated in N.J.S.A. 40:55D-70, which provides in pertinent part:
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 [C.40:55D-62 et seq.] 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 . . . and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article [eight] of this act[.] (emphasis added).
Citing the language in N.J.S.A. 40:55D-70c(1)(c), "or the structures lawfully existing thereon," plaintiff asserts that defendants failed to "satisfy the burden of establishing [their] lot, as well as [their] duplex is lawful; preexisting the ordinances they violated[.]" Plaintiff also cites N.J.S.A. 40:55D-68, which provides that nonconforming structures existing at the time of the passage of an ordinance may be continued upon the lot; that any person interested in land upon which a nonconforming structure exists may apply for a certificate that the structure existed before the adoption of the ordinance that renders it nonconforming; and that the applicant for such a certificate has the burden of proof. Plaintiff reasons that because defendants' duplex did not comply with the Borough's zoning requirements for properties in Residential B districts when defendants applied for their variances, and because defendants presented no proofs that the duplex existed before the zoning ordinance was enacted, defendants never established that they were seeking a variance for a "structure[] lawfully existing" on the property.
Plaintiff did not make this argument to either the Board or the Law Division. For that reason, we decline to consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). "[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the question so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Ibid. (quotation marks and citation omitted).
Plaintiff argues that the c(1)(c) reference to structures is jurisdictional. We disagree. Plaintiff confuses the Board's jurisdiction with the applicant's burden of proof. Unquestionably, the Board has jurisdiction to consider variance applications concerning residential properties within the municipality. N.J.S.A. 40:55D-70. During the exercise of its discretionary authority, the Board must determine whether a variance applicant has established the statutory criteria necessary to obtain the variances requested in the application. See Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 196-97 (App. Div. 2009). The applicant for a c(1) variance bears the burden of proving the statutory criteria. Kogene Bldg. & Dev. v. Edison Twp. Bd. of Adjustment, 24 9 N.J. Super. 445, 449 (App. Div. 1991). For that reason, if an applicant seeks a variance under section c(1)(c), the applicant must prove the c(1)(c) criteria, including, under appropriate circumstances, whether a hardship exists "by reason of an extraordinary and exceptional situation uniquely affecting . . . the structures lawfully existing" on a specific piece of property. The issue is one of burden of proof, not jurisdiction.
Here, the issue of whether defendants' duplex existed on the property before the ordinance that rendered it nonconforming was adopted, could have easily been resolved at the hearing. Defendants' expert opined that the duplex was lawful. If challenged, the expert could have elaborated upon his opinion. To be sure, had the issue been raised before the trial court, the court could have addressed it or remanded the matter. Because the issue was never raised, we decline to decide it. Neider, supra, 62 N.J. at 234.
III.
Plaintiff next contends the Board's approval of defendants' second variance application was arbitrary, capricious, and unreasonable because there was insufficient evidence to support two of the Board's factual determinations critical to its decision: First, hardship will result if the variances are not granted; second, granting the variances will not cause substantial detriment to the public. Plaintiff argues the record was devoid of evidence to support the Board's hardship determination because the Board had previously alleviated the hardship when it granted defendants' first variance application. She asserts "that a dimensional variance should be granted only so far as is necessary to alleviate the hardship[,]" citing Hawrylo v. Bd. of Adjustment, Harding Twp., 249 N.J. Super. 568, 583 (App. Div. 1991). According to plaintiff, defendants filed their second variance application because of their "lack of foresight in estimating their own house appetite and desire for an additional full bath and kitchen pantry."
As to the Board's determination that granting defendants' second variance would not cause substantial detriment to the public good, plaintiff cites that part of the Board's resolution that "the proposed structure will occupy only 20.9% of the lot whereas 25% is permitted," and asserts that the "lack of maximum coverage is not related to impact and does not negate or mollify the negative impact." She maintains that maximum coverage "goes to development potential and hardship." Further, plaintiff notes that there is no information in defendants' second application that compares existing to proposed conditions. Rather, defendants provided a comparison between what the Board had approved when it granted their first application and what defendants proposed in their second application.
In response, the Board argues that the irregularly shaped lot size and the building restrictions imposed by reason of that irregular shape constituted a hardship. Essentially, the Board cites the hardship criteria upon which it granted defendants' first variance application. The Board then argues, without citing any authority, that its grant of the initial variance "does not preclude [defendants] from filing another application advancing different specific plans, whether similar to previous plans or wholly different, for which they need variance relief"; and, that its grant of defendants' first variance does not preclude it "from considering new plans set forth through an entirely new application." Lastly, the Board asserts, "[t]he fact that variance relief was granted for different plans under a previously submitted application is irrelevant."
Defendants argue that the Board properly granted the variance because their property was "surrounded by many homes which were nonconforming in the same or similar ways that the applicants' structure was nonconforming." They had raised their home to meet flood plain requirements, and the zone permitted two-family or one-family uses. They also contend the Board correctly concluded that converting the duplex to a single family home constituted a less intrusive and less intensive use of the property. In short, defendants contend that converting the duplex to a single-family home was a benefit to the public good.
When we review a trial court's decision upholding or setting aside a zoning board's disposition of a variance application, we apply the same standard as the trial court. See D. Lobi Enter., Inc. v. Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Recognizing that boards of adjustment "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion," Sica v. Bd. of Adjustment, 127 N.J. 152, 167 (1992), and that zoning board decisions are presumed to be valid, Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005), we will set aside "[a] local zoning determination . . . only when it is arbitrary, capricious or unreasonable." Kramer, supra, 45 N.J. 296 "[C]ourts 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." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999). The presumption of validity is rebuttable, however. Harvard Enters., Inc. v. Bd. of Adjustment, 56 N.J. 362, 368 (1970). Moreover, "the deference accorded to a board's denial of a variance is greater than that given to its decision to grant a variance." CBS Outdoor Inc. v. Lebanon Plan. Bd., 414 N.J. Super. 563, 578 (App. Div. 2010).
As previously discussed, a board may grant a hardship variance under N.J.S.A. 40:55D-70c when the applicant proves that the hardship is occasioned by (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. "[P]ersonal hardship is irrelevant to the statutory standard, and . . . 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." Lang, supra, 160 N.J. at 53. Here, defendants established the statutory criteria during the hearing on their first variance application. The Board so decided and this decision is not in dispute. Rather, the central issue is whether defendants were entitled to an enlargement of the variances granted on their first application.
The doctrine of res judicata "appli[es] to actions heard by a zoning board of adjustment." Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 65 (1959).
Under the doctrine of res judicata, if the same parties or their privies do seek the same relief in the same factual setting, the case may be dismissed on the ground that it has already been decided. The doctrine of res judicata is one which as been evolved by the courts to prevent the same case being brought before the court time after time. "As a general rule, an adjudicative decision of an administrative agency 'should be accorded the same finality that is accorded the judgment of a court.'" Bressman v. Gash, 131 N.J. 517, 526 (1993), quoting Restatement (Second) of Judgments, §83 comment b (1982). The Court went on to say that the application of the doctrine to administrative decisions, like its application to judicial decisions rests on policy considerations such as "finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expense; elimination of conflicts, confusion and uncertainty; and basic fairness." Id. at 527.
[William M. Cox, et al., N.J. Zoning and Land Use Admin. §28-3.2 at 649 (2012).]
Res judicata, however, "does not bar the making of a new application for a variance, or for modification or enlargement of one already granted, or for lifting conditions previously imposed in connection with the grant of a variance, upon a proper showing of changed circumstances or other good cause warranting a reconsideration . . . ." Cohen v. Fair Lawn, 85 N.J. Super. 234, 237 (App. Div. 1964); accord, Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 246-47 (2008). An applicant seeking enlargement of a variance already granted must show that "[c]hanged circumstances or other good cause . . . warrant[s] reconsideration by the local authorities." Allied Realty v. Upper Saddle River, 221 N.J. Super. 407, 414 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988); accord, Parks Ctr. v. Zoning Bd. of Adjustment of Twp. of Woodbridge, 365 N.J. Super. 284, 291 (App. Div. 2004). If an applicant makes such a showing, then a board may consider the second application under applicable statutory criteria.
In the matter before us, the Board did not consider whether there had occurred a sufficient change in the application itself or in the conditions surrounding the property to warrant entertaining defendants' application again. To the contrary, the Board solicitor instructed the Board that it should consider only the evidence presented before it on the second application, and the chairman stated that if the second application were approved, defendants could choose to develop their property in accordance with either the first or second variance when they applied for building permits.
The record before us does not disclose whether plaintiff made this argument to the trial court. Neither the Board nor defendants have argued, however, that plaintiff is now raising the issue for the first time. Moreover, the Board has argued the issue in its brief. For those reasons, we address the argument.
The Board improperly considered defendants' second variance application under the applicable statutory criteria before first determining whether defendants had demonstrated changed circumstances or other good cause warranting reconsideration of their first variance application. For that reason, we are constrained to reverse and remand to the Board for "a correct application of the relevant principles of land use law." Lang, supra, 160 N.J. at 59.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION