Potential Drainage Issues Do Not Defeat Right to a Variance for Frontage

Ten Stary Dom Partnership v. Mauro, 216 N.J. 16 (2013).  Less than two weeks after issuing an opinion about conditional use variances, the Supreme Court today turned to bulk variances under N.J.S.A. 40:55D-70(c).  The issues of this case are on a more practical plane than those of many cases that reach the Supreme Court.  Nonetheless, Judge Cuff’s opinion for a unanimous Court contains much that is useful in any case that involves bulk variances.

Defendant Mauro owned a lot in the Borough of Bay Head.  The lot was zoned for single-family residential use.  Mauro sought to build a single-family home on the lot.  The development conformed to all ordinance requirements, except that the property lacked the minimum required frontage.  Mauro adduced evidence that he had tried, unsuccessfully, to acquire neighboring property in order to increase the frontage of his parcel.  He also presented expert testimony that his property would be valueless without the requested variance.  Finally, among other things, Mauro offered the testimony of an engineer that drainage issues would be handled appropriately.

The local Planning Board granted the variance by a 5-4 vote.  Plaintiff, a neighboring property owner, appealed to the Law Division.  That court reversed the variance because one voting Board member had missed certain meetings.  When the matter came before the Board again, the Board voted 5-4 to deny the variance.  Citing numerous grounds, including that Mauro’s proposed development allegedly did not provide adequate light, air, open space or a desirable visual environment, the Board determined that a variance would not advance the purposes of the zoning ordinance (“the positive criteria”) and that denying the variance would not cause hardship to Mauro (“the negative criteria”).

Mauro appealed.  The Law Division found that the positive criteria had been satisfied but affirmed the denial of the variance on the ground that the negative criteria had not been met.  Specifically, the Law Division relied on the fact that Mauro had not provided sufficient evidence as to how drainage would be handled.  The Law Division did not adopt the Board’s view of the rest of the negative criteria.  The Law Division affirmed the variance denial without prejudice, allowing Mauro to come back to the Board, on the same or different evidence, and to present his application anew.

Both sides appealed to the Appellate Division.  That court reversed, finding that Mauro had satisfied both the positive and negative criteria and that the Board’s contrary conclusion was without support.  The Appellate Division ruled that drainage was not relevant to the variance because drainage is an issue for site plan review, which would normally occur thereafter.  That aspect of the panel’s decision did not follow, however, since there is no site plan review for a single-family home that is a permitted use.  Because the Appellate Division held that the variance should have been granted, that court did not address the “without prejudice” aspect of the Law Division’s decision.

Plaintiff petitioned the Supreme Court.  The Court affirmed the Appellate Division’s conclusion that the variance should have been granted.  Judge Cuff did so even while acknowledging that Board decisions are presumed valid, and may be reversed only if arbitrary, capricious, and unreasonable.  That standard was satisfied here.

After laying out much very useful background as to bulk variances under N.J.S.A. 40:55D-70(c), Judge Cuff turned to the facts of this case.  The Board had wrongly failed to consider that a denial of the variance would effectively mean that Mauro could not use his property, and that Mauro had tried without success to acquire neighboring property to increase his frontage.  As to the positive criteria, the Court noted that Mauro’s property satisfied every aspect of the zoning ordinance except for the frontage requirement, so that the municipality had already concluded that a single-family residence on the site would provide adequate light, air and open space, and that it was not inconsistent with a desirable visual environment.  The frontage issue simply had nothing to do with any of that.

As to the negative criteria, the Board and the Law Division wrongly focused on drainage as a basis to deny the variance.  Though drainage and the risk of flooding are “legitimate zoning concerns,” those concerns could “adequately be addressed in another fashion.”  The Appellate Division had that right, though that court erred in stating that site plan review was the place to take account of drainage issues.  Judge Cuff observed that even though there is no site plan review for this type of development, Mauro would need to apply for a building permit, and the building inspector could deny the permit if drainage issues were not adequately addressed in that context.

Finally, the Court criticized the Law Division’s decision to affirm the denial of the variance without prejudice to Mauro presenting it again, even on the same evidence, to the Board.  Judge Cuff cited law going back as far as Russell v. Tenafly Bd. of Adj., 31 N.J. 58 (1959), to the effect that Boards are to determine the application of res judicata to their own proceedings.  The judge was obligated to affirm, reverse or modify the ordinance.  The choice of affirming without prejudice took the res judicata decision out of the hands of the Board and was improper.

The key lesson of this case, as to the positive criteria, is that “care must be taken to direct the evaluation of a request for a bulk variance to those purposes of zoning that are actually implicated or triggered by the requested relief.”  There was simply no nexus between the property’s frontage and the light, air, open space, environmental, and other concerns that the Board cited.  As to the negative criteria, again there needs to be a connection between the variance sought and the supposed adverse effect on the zone plan or zoning ordinance, and that connection must be one that is not subject to being addressed later in the development approval process.