Paul Valentine v. the City of Cape May Zoning Board of Adjustment

• Court: New Jersey Superior Court Appellate Division
• Decided: October 29, 2024
• Docket: A-1126-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1126-23

PAUL and NANCY VALENTINE,

Plaintiffs-Respondents,

v.

THE CITY OF CAPE MAY ZONING BOARD OF ADJUSTMENT,

Defendant-Appellant. ______________________________

Argued September 24, 2024 – Decided October 29, 2024

Before Judges Chase and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0104-23.

Richard M. King, Jr., argued the cause for appellant (King Barnes, LLC, attorneys; Richard M. King, Jr., and Marisa J. Hermanovich, on the briefs).

Andrew D. Catanese argued the cause for respondents (Monzo Catanese Delollis, PC, attorneys; Andrew D. Catanese and Kathryn Anne Monzo, on the brief).

PER CURIAM The Cape May Zoning Board of Adjustment (the Board) appeals from an

October 30, 2023 Law Division order and judgment reversing its denial of

plaintiffs Paul and Nancy Valentine's variance application pursuant to N.J.S.A.

40:55D-70(c)(1) (the (c)(1) variance), N.J.S.A. 40:55D-70(c)(2) (the (c)(2)

variance), and N.J.S.A. 40:55D-70(d) (the (d) variance), to install a swimming

pool and other outdoor improvements on their one-family residential property.

Based on our thorough review and application of prevailing law, we affirm

substantially for the reasons set forth by the trial court in its comprehensive

written decision.

I.

We discern the salient facts from the record before the Board. There

were several preexisting nonconforming conditions on the property based on

the rear and side yard setbacks, as well as total lot coverage (i.e. "impervious

coverage"), which exceeded the existing requirements of Cape May's zoning

ordinance, as promulgated in Cape May, N.J., Code § 525 (2004).

Plaintiffs submitted two successive applications to the Board. After the

first application was denied, plaintiffs revised the plans and reapplied. In the

second application, they sought (c)(1) and (c)(2) variances from the Cape May,

N.J., Code § 525-15B and § 525-62A, related to the installation of a swimming

A-1126-23 2 pool, which is a permitted accessory use in the R-2 zone, and other outdoor

improvements to: (1) decrease their preexisting non-conforming lot coverage

from 52.2% to 45.8%—40% is required under the ordinance; and (2) to

construct a swimming pool 4.7 feet from the principal structure—a 10-foot

setback is required under the ordinance.

On December 15, 2022, the Board considered the application at a public

hearing. Plaintiffs presented testimony from two experts: fire safety expert,

Lewis Conley, and engineering and planning expert, Andrew Schaeffer.

Conley opined the application presented no fire safety issues, which was

consistent with the written opinion proffered by Cape May Fire Chief,

Alexander Coulter.

Schaeffer addressed the (c)(1) variance, testifying that if the ten -foot

setback under the ordinance adopted in 2009 was required when the home was

built in 1980, the builders likely would have "left room by reconfiguring the

house for a future pool." Schaeffer stated the 4.7-foot proposed setback covers

the distance between the edge of the deck and the side of the swimming pool,

while the distance between the swimming pool and plaintiffs' home is more

than what is required under the ordinance. Schaeffer testified plaintiffs'

current lot coverage is 52.2% and the application proposes to reduce the pre -

A-1126-23 3 existing non-conformity to 45.8%, where the ordinance dictates the maximum

allowable lot coverage in this particular zone for a property that was built after

the passage of the ordinance is 40%.

Schaeffer opined that the benefits of the application far outweigh the

detriments since granting the (c)(2) variance would advance the purposes of

the ordinance through improving the property's drainage system, remedying

water pooling on the neighbors' yards, and decreasing overall lot coverage. He

testified that plaintiffs' proposed "other improvements" to the property, such as

new landscaping, promote a desirable visual environment and could be granted

without derailing the intent of the ordinance. Plaintiffs proffered photographs

along with corroborating testimony from Schaeffer showing that the Board had

granted similar variances for other properties previously.

The Board did not present any contradictory expert testimony. Board

engineer Craig Hurless's testimony was in accord with Schaeffer's. Hurless

opined plaintiffs' proposal to revise their existing drainage system would

mitigate the negative impact of the pre-existing lot coverage deviation.

The Board opened the meeting to the public, where seven individuals

testified. Certain neighbors anticipated noise from individuals enjoying the

pool would affect their quality of life. One resident argued there is nothing

A-1126-23 4 unique about the property warranting a variance and that granting the variance

would improperly allow the improvement of an already non-conforming lot.

Paul Haviland, plaintiffs' neighbor, testified as follows that granting

plaintiffs' application would be beneficial:

In fact, when I talk about the water runoff, it runs into my yard. So, I have a lake in the back of my yard when the water runs off. If he's going to put that drain in there, that's going to deter the water in the other direction. I am all for it because that lake sits there and it takes days for that to go away. So, that will be a drastic improvement to the back of my yard and I know it's going to, you know, help everybody else that's behind there as well because standing water is not good for anybody.

Another individual testified in favor of plaintiffs' application, stating

they did not anticipate the addition of a swimming pool would be disruptive.

The final member of the public to testify was co-plaintiff Paul Valentine.

Valentine suggested the objectors' concerns surrounded the use of the pool,

rather than its installation.

After closing arguments, the Board denied the application by a four to

two vote, which was memorialized by resolution. The Board found "the

decrease in lot coverage [does not] offset the intensification of the property

with the introduction of a pool." In short, the Board gave the neighbors'

testimony about "a pool [being] an intense accessory use" more weight than

A-1126-23 5 the expert testimony, and appeared to disregard the professionals' unrebutted

testimony.

On March 13, 2023, plaintiffs filed an action in lieu of prerogative writs

challenging the Board's denial. After hearing the matter, the trial court

reversed the Board, finding the denial was arbitrary, capricious, and

unreasonable in an eighteen-page written decision. This appeal followed.

II.

Our review of the trial court's decision reversing the Board is de novo.

388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221

N.J. 318, 338 (2015). When we review a trial court's decision "regarding the

validity of a local board's determination, 'we are bound by the same standards

as was the trial court.'" Jacoby v. Zoning Bd. of Adjustment of Borough of

Englewood Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone

Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div.

2004)). A local board's decision should not be reversed unless its findings

were arbitrary, capricious, and unreasonable. Ibid.

While a board is entitled to reject expert testimony, to avoid the

allegation its decision was arbitrary, capricious, or unreasonable, "proof of an

adverse effect on adjacent properties and the municipal land use plan . . .

A-1126-23 6 generally will require qualified expert testimony. Bare allegations . . . will not

suffice." Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor

Twp., 172 N.J. 75, 87 (2002) (quoting Smart SMR of N.Y., Inc. v. Borough of

Fair Lawn Bd. of Adjustment, 152 N.J. 309, 336 (1998)). "[I]t is essential that

the board's actions be grounded in evidence in the record." Wilson v. Brick

Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 196-97 (App. Div. 2009)

(citing Fallone Properties, 369 N.J. Super. at 562); see also New York SMSA

v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 339-40

(App. Div. 2004) (concluding the board failed to introduce its own experts to

contradict the applicants' experts).

A.

After de novo review, we affirm the trial court order reversing the

Board's denial.

To obtain a (c)(1) variance, the applicant must establish

(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

A-1126-23 7 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 . . . .

[N.J.S.A. 40:55D-70(c)(1).]

When we examine the record through the lens of our jurisprudence, we

conclude plaintiffs have met their burden to show an extraordinary and unique

situation that inhibits the extent to which the property can be used, warranting

(c)(1) relief. Schaeffer's unrebutted testimony established the 2009 setback

requirement imposes hardship on plaintiffs pursuant to the (c)(1) variance

since the ordinance's current setback requirement did not exist when the home

was built in 1980. See also Cape May, N.J., Code § 525-62A(2) (2004)

(amended 2009) (stating all swimming pools shall be at least ten feet from any

property line).

Plaintiffs' theory that pre-existing, non-conforming structures can

constitute hardship is supported by Lang v. Zoning Bd. of Adjustment of Twp.

of N. Caldwell, 160 N.J. 41 (1999). The Lang Court found the (c)(1) criteria

was established where the applicants proved they experienced an "exceptional

and undue hardship" due to the nature of the lot which stifled its use. Id. at

55-56. There, the Court agreed with the board, and found undue hardship

A-1126-23 8 since the enforcement of the applicable ordinance "would severely limit and

. . . preclude the installation of any reasonably sized . . . pool." Id. at 49.

Application of the Lang principles here leads us to the same conclusion.

The record also supports the trial court's determination that plaintiffs are

entitled to (c)(1) variance relief from the lot coverage requirements. The

Kaufmann Court recognized "the existence of a nonconforming structure may

justify a variance from maximum land-coverage requirements." Kaufmann v.

Plan. Bd. for Warren, 110 N.J. 551, 562 (1988) (citing Davis Enterprises v.

Karpf, 105 N.J. 476, 493 (1988) (Stein, J., concurring)). Plaintiffs' home was

built before the adoption of the applicable maximum lot coverage

requirements. The record establishes plaintiffs' proposed plan will reduce

impervious lot coverage from 52.2% to 45.8% and advance the property closer

to ordinance conformity. See Cape May, N.J., Code § 525-15B(2)(a) (2004)

(stating in the R-2 zone, maximum lot coverage must not exceed 40%).

Here, the Board offered no contradictory expert testimony on any issue.

Instead, the Board supported its denial based on alleged "over intensification"

of the use of the property, a complaint testified to by the objectors, plaintiffs'

neighbors. The Board also supported its denial by finding the 4.7 -foot setback

would not allow for "safety of the navigation in and around the pool." The

A-1126-23 9 Board's position "that the combination of the inadequate distance between the

pool and the deck, and the continued excess of lot coverage on the property

disincline the Board to grant the variance . . . and allow a pool in this

particular property" is not supported by any expert opinion.

We are unpersuaded by the Board's argument that the (c)(1) criteria is

not met because of the alleged overall intensification in the use of the property.

The Board maintains plaintiffs' Property is too overdeveloped for a pool and

having a rear yard that is too small for the size pool one desires, is not a

hardship under the (c)(1) standard. Although the Board argues undue hardship

requires that no effective use can be made of the property in the event that the

variance is denied, see, for example, Commons v. Westwood Zoning Bd. of

Adjustment, 81 N.J. 597, 605 (1980), our courts have applied a more

expansive view of the hardship requirements, finding the applicant must

demonstrate the hardship "inhibit[s] the extent to which the property can be

used." See Kaufmann, 110 N.J. at 562 (citing Davis Enterprises, 105 N.J. at

493).

III.

A plaintiff is required to establish a "substantial benefit" to obtain a

(c)(2) variance:

A-1126-23 10 [W]here in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the board of adjustment shall have the power to] grant a variance to allow departure from regulations pursuant to article 8 of this act . . . .

[N.J.S.A. 40:55D-70(c)(2).]

"A [(c)(2)] variance . . . must set forth what purposes of the [ordinance] will be

advanced by granting the requested variance." Wilson, 405 N.J. Super. at 198;

see also Kaufmann, 110 N.J. at 562 (explaining a grant of a (c)(2) variance

"must be rooted in the purposes of zoning and planning itself and must

advance the purposes of the [ordinance].").

Here, the record contains ample unrebutted expert opinion that plaintiffs'

application advances statutory zoning purposes and benefits the community by

decreasing the impervious lot coverage from 52.2% to 45.8%, thus reducing

the percentage of non-conformity. See Chesterbrooke Ltd. P'ship v. Plan. Bd.

of Twp. of Chester, 237 N.J. Super. 118, 130 (App. Div. 1989) (reasoning an

applicant advances the purposes of the zoning plan when the applicant's

proposed plans place the land closer in conformity with the ordinance).

Additionally, the Board's own engineer testified the proposed drainage system

would positively impact the neighboring properties. Although the Board

A-1126-23 11 submits plaintiffs' lot coverage "could be reduced without intensifying the

property overall," the (c)(2) standard does not require an applicant to eliminate

the nonconformity to obtain a variance for a permitted use. The undisputed

expert opinion in the record establishes granting the application will benefit

the community, both visually and through reducing existing community

drainage issues.

IV.

We also affirm the trial court's determination plaintiffs satisfied their

burden to obtain a (d) variance.

In addition to meeting either the (c)(1) or (c)(2) requirements, "the

negative criteria of N.J.S.A. 40:55-70(d) must also be met." Wilson, 405 N.J.

Super. at 197. In pertinent part, N.J.S.A. 40:55D-70(d) states:

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).]

Evaluation of (c)(1) or (c)(2) variance applications focus "on the impact the

variance will have on the specific adjacent properties affected by the permitted

A-1126-23 12 deviations from the ordinance." Lang, 160 N.J. at 57. The impact should be

measured by considering whether the "grant of the variance can be reconciled

with the zoning restriction from which the applicant intends to deviate." Ibid.;

see also Ten Stary Dom, 216 N.J. at 32 ("[C]are must be taken to direct the

evaluation of a request for a . . . variance to those purposes of zoning that are

actually implicated or triggered by the requested relief").

Schaeffer's unrebutted testimony was that the purpose of the ordinance is

not to protect the neighborhood from potential noise associated with pool

use—but rather to promote the aesthetics of the neighborhood and to ensure

fire safety. See Cape May, N.J., Code § 525-2(B) (2004) (outlining the

purposes of the provisions contained in Chapter 525, including to promote fire

safety and a desirable visual environment). The Board focused on the increase

in overall intensity of the property, including certain neighbors' quality of life

concerns. Those considerations "[are] wholly irrelevant because pools are a

permitted accessory use in the zone." See, e.g., Ten Stary Dom, 216 N.J. at

n.2 (standing for the proposition that noise is an irrelevant consideration when

requesting (c)(1) or (c)(2) variance relief).

Any arguments not addressed in this decision are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A-1126-23 13 Affirmed.

A-1126-23 14