PER CURIAM.
Plaintiffs Keith and Liesel Fernandez appeal from a July 16, 2008 order dismissing their complaint seeking to set aside a stop construction notice issued by the Township of Bloomfield and challenging the Township Zoning Board of Adjustment's decision denying their variance application. We affirm.
Plaintiffs' house is located in a neighborhood of small homes, built relatively close to each other, on small irregular-shaped lots. Plaintiffs applied for and obtained a zoning permit on March 21, 2006, and a construction permit on May 9, 2006, to add a second floor bedroom to their house. With the approval of the municipal building inspector, they began construction, which included columns to support the new bedroom. However, a few weeks later, on June 23, 2006, the Township zoning officer issued a stop construction order, asserting that the project did not meet the bulk and setback requirements of the local zoning ordinance. Plaintiffs applied for variances, which the Zoning Board denied after a two-day public hearing.
The following pertinent evidence was introduced at the Board hearing. Plaintiffs' expert, Roger DeNiscia, a licensed professional planner, testified that plaintiffs' residence was located on an irregular-shaped lot, which constituted "an unusual, or unique condition." The irregular-shaped lot resulted in "varied," "totally different" setbacks, which "makes it very difficult to develop" the property. DeNiscia "concluded that it's only because of the size of the lot and its shape that create[d] the need for a variance." He also opined that granting the variance would not block the sunlight available to neighboring houses or otherwise have a negative effect on the surrounding properties. Therefore, he reasoned that the Municipal Land Use Law,
The objectors' expert, Karen Rosenberger, a professional planner, challenged DeNiscia's assessment of the uniqueness of plaintiffs' lot. Rosenberger testified that the lots in that zone "are all small, undersized, irregular lots" and, therefore, "the light and space and air for all of these people is compromised by what happens on adjacent property." Rosenberger added that the addition does not fit "within the context of the neighborhood." Based on these and other factors,
The application was also the subject of vociferous opposition from many of plaintiffs' neighbors. One of the neighbors testified that he "used to be able to go into [his] backyard and look up and see the sky. Now, [he] see[s] what looks like a ski lodge." Plaintiffs' rear neighbor testified that the addition compromised the "little privacy" afforded to residents in the zone. The neighbor described the addition as "a watch tower, peering [into] the nearby houses, imposing on everyone's privacy." Other residents echoed these sentiments, and added that the addition did not conform "with the character of the houses in the neighborhood." They also complained that the addition overshadowed their back yards and blocked their views of the neighborhood. One neighbor testified that the addition blocked the sun in such a way as to limit the hours during which he could use the pool in his back yard.
Following the public hearings, the Board denied the application. The Board noted that plaintiffs' residence was located on an "irregular lot" and that construction of the addition was "substantially completed" when the Township issued the stop construction notice. The Board, however, denied the application, based on its conclusion that the "addition would be a substantial detriment to the public good because . . . it denies neighboring property owners adequate light, air and open space." The Board also determined that the "addition would invade the privacy of neighboring property owners."
The Board based its legal conclusions on its factual findings that "the addition hovers over the rear yard of the adjoining property to the west" and "affords a view of the rear yard of the adjoining property to the east," both of which are conditions that "did not exist prior to the construction of the addition." The Board relied in part on photographs of the addition and the surrounding neighborhood.
Before the Law Division, plaintiffs contended that the Board was equitably estopped from denying their variance application, and that the denial was arbitrary and capricious. In a thorough oral opinion issued May 16, 2008, Judge Giles disagreed.
Addressing the estoppel issue, Judge Giles first rejected plaintiffs' argument that any zoning violation was de minimis, finding that "the dimensions of the addition existing in the plan submitted to the Township, the surveys before and after construction, and the photographs marked into evidence showing various stages of construction clearly show that the side, rear and bulk deviations from the zoning ordinance are not `de minimis.'" Judge Giles further concluded the Township's zoning ordinance was "plain and unambiguous and required no interpretation and was not the subject of any debate as to interpretation when the permits were issued or at any time." In other words, there was no arguable legal basis to issue the zoning permit. Judge Giles further found that the Township, "rather than sitting back and doing nothing," proactively inspected the addition to determine whether it violated the zoning ordinance. Relying on photographs of the addition, Judge Giles also found that plaintiffs completed construction of the addition after receiving the stop construction notice.
Next, Judge Giles upheld the Board's denial of the variance application. He found substantial support in the record for the Board's conclusion that plaintiffs failed to meet the negative criteria, which were required to obtain the requested (c) variance.
He further concluded that there was nothing unique about plaintiffs' property when compared to most of the other properties in the neighborhood. Hence, he observed that plaintiffs also did not satisfy the positive criteria.
The legal principles applicable to this appeal are well settled. "[A] decision of a zoning board may be set aside only when it is `arbitrary, capricious or unreasonable.'"
We give greater deference to a Board's decision to deny a variance than to grant one, because "variances tend to impair sound zoning."
On this appeal, plaintiffs contend that they were entitled to several variances under
"Undue hardship" focuses "on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property."
The applicant for a variance must also satisfy the statutory negative criteria:
The requirement that the variance not cause a "`substantial detriment to the public good' focuses on the impact the variance will have on the specific adjacent properties affected by the permitted deviations from the ordinance."
Applicants for a variance bear the burden of proving that they satisfy both the positive and negative criteria.
On this appeal, plaintiffs contend that the Board gave inadequate weight to their expert's testimony and too much weight to the testimony of the objectors' expert. We find no merit in that argument. It was for the Board to decide which expert was more credible.
Plaintiffs also contend that the Township should be estopped from issuing a stop work notice. They argue that they applied for a zoning permit in good faith and reasonably relied on the issuance of the permit in spending $35,000 on the addition. They also argue that the setback violations are de minimis. We disagree.
The law is clear that to prove equitable estoppel in these circumstances, plaintiffs must establish that the zoning ordinance was ambiguous and the municipal official's interpretation of the ordinance was at least "debatable."
Plaintiffs do not argue that the zoning ordinance at issue was unclear or that the municipal official's interpretation was debatable, as opposed to simply wrong. In fact, the record contains no explanation as to the responsible municipal official's interpretation of the zoning ordinance, and it is not even clear which person in the zoning office was responsible for erroneously issuing the permit. Because the zoning office acted contrary to an unambiguous ordinance in issuing a zoning permit, plaintiffs cannot invoke estoppel against the municipality.
Further, the equities do not favor plaintiffs, given the Board's finding that granting the variance would cause harm to their neighbors. As built, the second-story addition was 2.57 feet from the neighbors' property line on the westerly side, instead of the six feet required by the ordinance. As the Board reasonably concluded, in such a crowded neighborhood, that represented a significant incursion on the neighbors' privacy. Further, as previously noted, the Board credited the testimony of the objectors that the addition interfered with their available light and their views of the neighborhood.
Plaintiffs' reliance on
Further, unlike the objector in
Affirmed.