Commons v. Westwood Zoning Board of Adjustment

Supreme Court of New Jersey · Property

PropertyZoning variancesUndue hardshipNegative criteriaundersized lotsingle-family residencebulk variancefrontage

Facts

Plaintiffs owned a vacant residential lot that had been held by them and their predecessors since 1927, and a builder contracted to buy it if he could build a one-family house. The lot was in a residential district requiring 75 feet of frontage and 7,500 square feet, but it had only 30 feet of frontage and 5,190 square feet; those minimums were added by a 1947 amendment, after the lot had already existed in its undersized condition. The proposed house would meet use, side-yard, and setback requirements, and testimony indicated its value would be comparable to nearby homes, though neighbors objected on aesthetic, privacy, and property-value grounds. Plaintiffs had unsuccessfully tried to buy a 10-foot strip from one neighbor and had earlier discussed selling the lot to another neighbor, but the parties' prices were far apart.

Issue

Whether the board properly denied a variance for construction of a single-family residence on this undersized lot on the grounds that plaintiffs showed no hardship and that the variance would substantially impair the zone plan and ordinance. Also, whether the board's conclusory findings were sufficient to support denial.

Rule

A board may grant a variance under N.J.S.A. 40:55D-70(c) when, because of the narrowness or other exceptional condition of the property, strict application of the ordinance would cause exceptional and undue hardship. Undue hardship turns on whether denial leaves the property without effective use, whether the hardship is self-imposed by the owner or predecessors, and whether the owner made reasonable efforts to cure the nonconformity or to sell to adjoining owners at a fair and reasonable price. Even where hardship exists, the applicant must prove the negative criteria: the variance must be grantable without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and ordinance. A board denying a variance may not rely on conclusory statutory language alone; it must make specific findings of fact supported by the record and tied to the statutory criteria.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Montclair, New Jersey, Lena Ortiz owns a vacant residential lot with 32 feet of frontage in a district that requires 70 feet of frontage for a single-family home. The lot existed in that condition decades before the frontage rule was adopted, and if a variance is denied, no residence or other permitted structure can be built on it.

Which is the strongest argument that Lena has shown undue hardship for a bulk variance?

Explanation. The majority states that undue hardship centers on the underlying notion that no effective use can be made of the property if the variance is denied. It also directs attention to whether the nonconforming condition predated the ordinance, because that cuts against finding the hardship self-imposed. Mere lost profitability or neighbor preference is not the test.