Posted by: Patricia Salkin | December 17, 2013

NJ Supreme Court Upholds Reversal of Variance Denial

T. Brent Mauro was the owner of a 50 by 95 foot lot at the end of Willow Drive—a 500-foot lane or alley which is not a municipal street—that he sought to improve with a single family home in 2002. In that zone, residences are required to have at least 50 feet of road frontage; Mauro’s lot had only 10.02 feet of frontage, and was not technically located on a municipal street. Willow Drive was improved with a number of other residences with garages fronting the lane, but the Borough Attorney opined that Willow Drive was not a municipal street and thus that Mauro’s lot did not have sufficient frontage on a public street. In 2006, the Borough Council agreed to allow Mauro to improve Willow Drive such that it would meet road specifications for public streets, and that it would later be certified as a public street. Once that occurred, the Borough assured Mauro he would be entitled to a building permit for his proposed residence, provided he could obtain a variance for road frontage, and any other variances needed for the project.

In 2007, Mauro filed a bulk variance application to the Borough of Bay Head Planning Board requesting permission to build the residence on a lot with only 10.02 feet of road frontage. Mauro assured the Board that the proposed dwelling would meet all other requirements, and noted that he had attempted to obtain additional frontage from neighbors, but was unsuccessful. Mauro also submitted information and testimony from experts, including the opinion of a licensed engineer stating that single-family residential was the best use of the property and that denial of the variance would make the lot “virtually useless.” Members of the public opposed the variance. However, in November 2007, the variance was granted in a 5-4 vote, conditioned on the improvements to Willow Drive and the residence’s compliance with stormwater and fire suppression requirements. The Board also noted in its resolution that denying the variance would pose an undue hardship to Mauro, and that granting the variance would not cause an undue detriment to the public good.

Ten Stary Dom Partnership then filed an action challenging the Board’s grant of the variance, raising several challenges to alleged procedural irregularities in the approval process. The trial court sent the issue back to the Board for a new vote, which occurred in December 2009, at which point the Board voted 5-4 to deny the variance, this time based on concerns raised by neighbors about drainage issues, fire safety, and aesthetics. The Board also reversed course on the determination of undue hardship, finding that granting the variance would not serve the public good. Mauro challenged this new determination, claiming it was arbitrary and capricious, and arguing that the denial of the variance was an unconstitutional taking of his property without just compensation. However, the lower court ultimately affirmed the Board’s denial. Ten Stary Dom appealed that decision, and Mauro cross-appealed. On appeal, the Board’s decision was reversed, after the appellate court found that the Board had acted unreasonably and without sufficiently concrete reasons for denying the application. Ten Stary Dom petitioned for certification to the New Jersey Supreme Court—this is the current stage of litigation.

Before the New Jersey Supreme Court, Ten Stary Dom argued that the Appellate Division had made an error of law because state law exempts single-family homes from site plan review and approval by the planning board, yet the Appellate Court had found that the Board should have considered some of the broader issues at play, such as drainage issues, during its site plan review of Mauro’s application, instead of during the variance process. Since no site plan review would have occurred for a residence, Ten Stary Dom noted that the only opportunity for meaningful review of Mauro’s project was the variance review, and the Board should have been permitted to look at issues such as drainage at that time. The partnership also argued that the Appellate Court should have deferred to the discretion of the Board instead of substituting its judgment for that of the Board. Mauro agreed that this project was not subject to site plan review, but argued that that mistake in the decision did not affect the overall thrust of the Appellate Division’s decision. The Board argued that it had satisfied its obligations during review of the application, and that its denial was proper.

The New Jersey Supreme Court held that, contrary to the Board’s contentions, Mauro had satisfied both the positive and negative criteria for obtaining a variance from frontage regulations. Further, the state Supreme Court agreed with the Appellate Division that the Board’s denial was simply not supported by the record, and that the Town’s review of the project had exceeded the scope of what was reasonably at play in the application—namely, whether issuing a variance from street frontage requirements would be detrimental to the community’s overall zoning scheme. The Court held that the Board had “utilized the occasion of a request for a variance from a density standard to delve into other concerns that can be adequately addressed in another fashion.” Plainly, Mauro met his burden sufficient to be awarded a variance, and the Town’s second decision denying him the variance was arbitrary and capricious. Thus, the Court affirmed the Appellate Division’s holding overturning the Board’s denial.

Ten Stary Dom Partnership v. Mauro, 2013 WL 5539607 (N.J. 8/5/13)

The opinion can be accessed at:

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