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New Jersey Land Use: Best to Seek Permission, Not Forgiveness

WEINER LAWInsightsNew Jersey Land Use: Best to Seek Permission, Not Forgiveness

Land Use & Zoning Defense Friday, November 29, 2019

Sometimes in life it is better to ask forgiveness than permission.  However, this doesn’t necessarily hold true when it comes to Land Use.  In a recent matter, after the landowners performed the work and sought zoning relief after the fact, the Board, and the Courts, found that their application lacked merit and the work performed would have to be removed.

Mr. Van Ess is a retired Totowa Borough Police Officer and Vietnam Veteran who is totally and permanently disabled as a result of injuries sustained during his military and police careers.  Mr. and Mrs. Van Ess own and occupy an existing single-family dwelling with an existing driveway which led to a two-car garage.  However, Plaintiffs converted the garage space to living space thereby eliminating parking spaces from inside the dwelling unit.  At the same time, Plaintiffs installed an asphalt parking pad in the middle of the front lawn without obtaining any construction or zoning permits from the Borough of Totowa’s Construction Official’s Office nor receiving any zoning approvals from the Zoning Board and without giving the Borough an opportunity to consider a reasonable legal accommodation.

Upon notice from the Zoning Officer of the violation, Plaintiffs made an application to the Zoning Board for variance relief to allow the already installed parking lot to remain.  The Plaintiffs sought variance relief from the Totowa Borough Code which restricted parking spaces from being located within the 25-foot front yard setback and relative to the installation of the asphalt parking pad in the middle of the front lawn.  Plaintiffs sought variance relief under the Municipal Land  Use Law pursuant to N.J.S.A. 40:55D-70c(2).  The Plaintiffs alleged that they were entitled to keep the asphalt parking pad in the front lawn in reliance upon the Americans With Disabilities Act (ADA), 42 U.S.C. Sections 12101 to 12213 as well as the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. Sections 3601 to 3619.

At the Zoning Board hearing, the Plaintiffs represented that seven (7) family members reside in the single-family dwelling and that the family has four (4) cars.  They further represented that they had to convert the existing garages to living space to accommodate the additional family members living in the home.  However, the Plaintiffs also asserted that the alterations to the single-family dwelling were made to accommodate Mr. Van Ess’ disabilities.

The Board found that the Plaintiffs’ desired additional on-site parking for the family members who now live on the site and are using the disability of the Plaintiff as a pretext to add additional on-site parking. The Board found that had the Plaintiff not eliminated the garage space in favor of living space for other residents of the household, the Plaintiffs would have been able to park cars directly in the garage and access the first floor of the dwelling.  Further, if not for the elimination of the garage space the Plaintiffs could have parked two cars in the garage and two cars in the driveway which would have provided ample on-site parking for four (4) cars in the household.  On-street parking is also available in this neighborhood without any restrictions or prohibitions.

The Board also informed the Plaintiffs that they could install a handicapped accessible ramp without the need to appear before the Zoning Board of Adjustment by applying to the Borough Code Official and providing him with the necessary documentation. The Zoning Board denied the Plaintiffs’ application.

The Plaintiffs, Cornelius Van Ess and Luisa Van Ess, his wife, then filed an appeal to a denial by the Borough of Totowa Zoning Board of Adjustment (Board or Zoning Board) seeking “c” variance relief in regard to the installation of a 540 square foot asphalt parking area in the middle of the front lawn of their single-family residence.  Richard Brigliadoro, Esq. of Weiner Law Group represented the Zoning Board.

The Trial Court affirmed the Zoning Board’s denial and adopted much of the Zoning Board’s reasoning.  The Trial Court held that:

“A review of the transcript and of the zoning ordinances and the zoning laws shows an absence of any intentional discrimination by the defendant or discriminatory impact particularly because the Borough is not refusing to make a reasonable accommodation.”

On appeal, the Appellate Division affirmed the decision of the Trial Court.  The Appellate Division held that a Zoning Board’s decision is entitled to deference and a reviewing Court will only reverse the decision of a Zoning Board if said decision was arbitrary, capricious or unreasonable.  Further, the Appellate Division held that a reviewing Court may not substitute its judgment for that of the municipal body.  A court gives greater deference to a decision to deny a variance by a Zoning Board.  The Appellate Division affirmed the decision of the Trial Court substantially for the reasons expressed in Judge Caposela’s cogent written opinion.  The Appellate Division found no error in Judge Caposela’s conclusion that “[a] review of the [variance hearing] transcript and of the zoning ordinances and the zoning laws shows an absence of any intentional discrimination by the Defendant or discriminatory impact, particularly because the Borough was not refusing to make a reasonable accommodation.” Thus, the Zoning Board’s decision to deny variance relief did not violate the Americans With Disabilities Act or the Fair Housing Amendments Act of 1988.  The Appellate Division concluded that Plaintiffs’ remaining arguments lack sufficient merit to warrant further discussion in a written opinion in accordance with R. 2:11-3(e) (2).

While most municipalities and Land Use Boards do all they can to accommodate residents with disabilities, the mere fact that a resident is disabled is not always enough to meet the criteria for the granting of a variance.  Often times, as here, a Board can offer alternatives to meet the same goal without issuing a variance which can impact the rest of the neighborhood.

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