Agenda - Planning Commission - 09/04/2008

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Zoning Bulletin ground underneath it, the Abbotts could have built a conforming deck without impacting the dfainage from their property. The court also disagreed with the Board's conclusion that the recon- structed deck would not impact the Millers' property. The court found that the deck reconstruction extended the deck to within a few feet of the Millers' window. The court said this clearly affected both the Millers' side view and their privacy. The court also found that by raising the deck and extending it out to the water line, the Abbotts affected the Millers' view of the water. Consequently, the. court concluded, the variance could not be granted without doing violence to the purpose of the zoning ordinance. Finding it undisputed that the Abbotts could build a deck that con- formed to the zoning ordinanc~, the court determined that the appropri- ate remedy was to require the Abbotts to modify their deck to so con- form. The court noted that any hardship involved in such a modification was self-created. The court also concluded that evidence did not support the Board's de- cision to grant the "D" variance for the staircase. The court noted that similar to the grant of a "c" variance, under New Jersey statutory law (N.J.S.A. S 40:55D-?Od) the grant of a "D" variance also required an ap- plicant to prove both positive and negative criteria. The court said that pursuant to New Jersey case law, an applicant had to show one of three "special reasons" for granting the variance: (1) the proposed use inher- ently serves the public good, such as a school or hospital; (2) the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; or (3) the use would serve the general welfare because the proposed site was particularly suitable for the proposed use. An applicant also had to show that a variance could be granted without substantial detriment to the public good and without im- pairment of the intent and purpose of the zone plan and zonipg ordinance. The court found that the Abbotts did not contend that the proposed stairway was an inherently beneficial use or that not erecting it would cre- ate an undue hardship. The Board had approved the D variance on the basis that it would serve the general. welfare because the. proposed site was "particularly suitable for the proposed use." The court found that the Board's resolution was not supported by sufficient evidence. There was no explanation of how the property's location impacted the application. There were no architectural drawings to support the Board's conclusion that the staircase would "make a positive architectural statement." The fact that the staircase would improve safety would justify installing an outside stair- case for all homeowners, although the ordinance prohibited it, said the court. Moreover, the court found, the Board's resolution failed to even dis- cuss the applicable zoning restriction or explain how granting the variance would be cqmpatible with the purpose of the restriction. See also: Lang v. Zoning Bd. of Adjustment of Borough of North Caldwell, 160 N.J. 41, 733 A.2d 464 (1999). 4 @ 2008 Thomsen Reuters/West 74 \ j 1 i I j i I I I I I \ i \