The Supreme Court of New Jersey recently ruled in the case of Ten Stary Dom Partnership v. Mauro, that the Borough of Bay Head’s planning board improperly denied a landowner’s request for a bulk zoning variance to build a one family home. The Court found that the board placed too much emphasis on drainage concerns and failed to give other factors sufficient consideration.
The Facts of the Case
The defendant, T. Brent Mauro, owns property in the Borough of Bay Head with 10.02 feet of frontage on Willow Drive. Because the residential zone in which the property is located requires frontage of fifty feet, Mauro sought a variance from the Borough’s planning board to construct the dwelling.
At the subsequent board hearings, Mauro testified that he had unsuccessfully attempted to acquire adjacent land to conform to the frontage requirement. A licensed professional engineer and planner testified that the property would be useless without a variance, and that drainage for the site would be designed to meet appropriate engineering standards. Mauro provided architectural plans detailing the use of fire retardant building materials and a fire suppression system, and a permit authorizing the use of fill on the site. In addition, the Borough’s fire chief confirmed that emergency responders could adequately respond to the property. By a vote of 5 to 4, the board granted the variance.
After a neighboring landowner filed a prerogative writ action challenging the Board’s approval of the application, the parties confirmed that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts of the hearings. The bulk variance application was remanded for a new vote and subsequently denied. Among other concerns, the board concluded that Mauro failed to show by “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”
The Court’s Decision
On appeal, the state Supreme Court ultimately concluded that Mauro satisfied the positive and negative criteria and should be granted the requested bulk variance.
The panel noted that although Mauro was unable to cure the property’s defects by acquiring the adjacent property, the property would be useless without a variance, and that the lot satisfied all other zoning requirements. The court also found that the board disregarded evidence that Mauro satisfied many of the board’s concerns, such as the ability of the fire department to access the site; the use of fire suppression system and fire retardant materials; and the issuance of environmental permits to bring fill onto the property.
With regard to the drainage issues, which formed a significant basis for the denial, the court held that the board put too much weight on that one factor. As explained in the opinion, “In focusing on the failure of the applicant to present an engineering plan calculated to solve the identified drainage issue on the lot, the Board and trial court misperceived the weight to be afforded to that factor in evaluating whether a variance from the frontage requirements of the zone undermined the zoning plan of the Borough. That focus also ignored the authority of the Board to impose conditions, such as submission of a satisfactory plan to address on-site drainage issues, for issuance of a building permit.”
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.