Agenda - Planning Commission - 09/04/2008

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--~ .( ) June 25, 20081 Volume 2\ No. 12 proper grade from which to measure was the rear yard grade prior to two. decades of erosion of dirt under the old deck. Eventually, the Abbotts applied to the city's Zoning Board of Adjust- ment (the Board) for a "C" variance to continue the existence of their deck. They also sought a "D" variance trom the zoning ordinance's pro- hibition on outside staircases to the second floor in a single family zone. They wanted to construct a spiral staircase from the first floor of the deck to the second floor of the deck. .. The Board granted the "C" variance. In doing so, the Board found . that failure to grant the variance would result in "peculiar and practi- cal difficulties to, or exceptional and undue hardship" on the Abbotts. It found a variance was needed to improve drainage. It also found that the . enlarged deck would have no impact on the neighbors' property. The Board also granted the "D" variance. In doirig so the Board found that: the site was well-suited for such a staircase; would provide an addi- tional means of egress to the property and enhance safyty; would make a positive architectural statement; and would not affect the neighbors. Mter both variances were approved, the Miller's filed a complaint challenging their approval. The Millers argued that the variances were arbitrary, capricious, and beyond the power of the Board. They argued that approval violated conditions attached to a 1988 variance that the Abbotts had received on the same property. That variance conditioned construction of a staircase to the rear deck upon the Abbotts not ob- structing any obstacles that would block the Millers' water view. The trial judge found the Board's decision was not arbitrary, capri- cious, or unreasonable. She also found that the .new deck did not impair the Millers' use and enjoyment of their property. The Millers appealed. DECISION: Reversed and remanded. The court first concluded that evidence did not support the Board's de- cision to grant the "C" variance for the deck. The court noted that under New Jerseystatutory law (N.J.S.A. ~ 40:55D-70c(1)) a bulk variance could be granted if an applicant satisfied both positive and negative criteria. An applicant had to show that strict enforcement of the zoning ordinance, in view of the property's unique characteristics, imposed undue hardship that could inhibit the extent to which the property could be used. An applicant also had to show that granting of the variance would not result in substan- . tial detriment to the public good anci would not substantially impair the intent and purpose of the zone plan and zoning. ordinance. The court fo~d that although the Board had said a variance was needed to improve drainage on the property, the deck itself had no im- pact on drainage. The court determined that only the grading of the land . - underneath the deck affected the drainage. The court found that smce the deck, as built, was considerably elevated above the level of the re-graded ..---....... @ 2008 Thomson ReutersIWest 3 73