Posted by: Patricia Salkin | December 23, 2010

NJ Appeals Court Upholds Variance Denial for Fence

Plaintiff owned a single-family dwelling which was located five feet from his property line.  Plaintiff installed an opaque white vinyl fence around his property but he did not obtain approval to do so.  Plaintiff filed a pro se application to the Zoning Board of Adjustment for the fence but the Board denied the application because it violated a local ordinance.  In support of his application, Plaintiff noted that other neighbors had similar fences and that due to low hanging power lines, it made it difficult to plant trees along one side of his property. The Board concluded that the purpose of the ordinance was to prevent a “tunneling” effect caused by having too many fences.  Despite Plaintiff’s property being triangular in shape and having two street frontages, the Board determined that it was not a unique situation which warranted granting a variance.

Plaintiff appealed and argued that the Board’s decision was arbitrary, capricious and unreasonable.  Plaintiff argued that the unique triangular shape of his property and the number of neighbors who had the same fences warranted a variance, which the Board arbitrarily denied.  The judge noted the deference ordinarily given to Board decisions but in this case, denial of the variance was incorrect.

The Board appealed and the Superior Court determined that the lower court exceeded its authority when it reversed the Board’s decision.  The standard of judicial review is whether the enforcement of the ordinance caused undue hardship on Plaintiff and his property. In this case, Plaintiff’s hardship was not caused by the triangular shape of his property because the property did not require Plaintiff to build a six-foot fence.   Furthermore, Plaintiff did not meet his burden of proof to show that the fence would not negatively impact  the neighborhood, which is what the ordinance was designed to prevent.  The trial court decision was reversed.

DeVito v. Zoning Bd. of Adjustment, 2010 WL 4977105 (N.J. Super A.D. 12/9/2010)

The opinion can be accessed here

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