                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1169-17T2

JOHN and MARY
SCHEIBELHOFFER,

          Plaintiffs-Appellants,

v.

BRICK TOWNSHIP ZONING
BOARD OF ADJUSTMENT,

     Defendant-Respondent.
____________________________

                    Argued December 17, 2018 – Decided March 8, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-0719-17.

                    John J. Jackson, III argued the cause for appellants
                    (King, Kitrick, Jackson & McWeeney, LLC, attorneys;
                    John J. Jackson, III, on the briefs).

                    Ronald D. Cucchiaro argued the cause for respondent
                    (Weiner Law Group LLP, attorneys; Ronald D.
                    Cucchiaro, of counsel and on the brief).

PER CURIAM
      This is an appeal of the trial court's decision concerning an action in lieu

of prerogative writs in which plaintiffs John and Mary Scheibelhoffer

challenged the decision of the Brick Township Board of Adjustment's (the

"Board") partial denial of their application for variance. For the reasons that

follow, we conclude that once the trial court determined that the subject

property's size and configuration gave rise to a hardship pursuant to N.J.S.A.

40:55D-70(c)(1) of the Municipal Land Use Law ("MLUL"), it was compelled

to reverse and remand to the Board to weigh the positive criteria established by

the hardship against the negative criteria.    Therefore, we now reverse and

remand the matter to the Board to conduct the appropriate (c)(1) weighing test.

      Plaintiffs are the owners of a single family residence located in the

Mantoloking Shores neighborhood of Brick, New Jersey (the "property"). The

subject property is designated as Block 44.21, Lot 6 on the official map of the

Township of Brick. The property contains 7,834 square feet and is an undersized

corner lot which has 120.94 feet of frontage along the northerly side of Tide

Pond Road and 80.90 feet of frontage along the easterly side of Wherry Lane.

The property is bordered to the east by a lagoon. The property is situated in the

R-7.5 (Single-Family Residential) Zone, as are adjacent residential properties to

the north. The property is bordered to the east by a lagoon. It is essentially a


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                                        2
pie-shaped lot with two front yards, one located on Tide Pond Road and one

located on Wherry Lane.

      Plaintiffs' home was substantially damaged as a result of the impact of

Hurricane Sandy in October 2012. In 2013, the home was elevated three feet

and the rear deck adjacent to the lagoon was reconstructed and elevated by two

feet. The contractor hired by plaintiffs represented that all work was done in

compliance with the permits; however, plaintiffs later discovered that the

contractor had not built the deck, hot tub and awning in compliance with the

construction permit and approved plans. According to plaintiffs, they were

unaware of the deviations because the contractor stated that everything was

being built in accordance with what was permitted. The alterations ultimately

forced plaintiffs to seek variance relief to legitimize the improvements so

plaintiffs could obtain a certificate of occupancy.

      On December 14, 2016, the Board held a hearing regarding plaintiffs'

application for variance relief. At the hearing, plaintiffs relied on the expert

testimony of an engineer and planner, Charles Lindstrom, P.E., P.P.        Two

objecting neighbors, Linda Sampson and Kathy Rosman, both of whom live on

adjacent properties on Wherry Lane, were represented by attorney Adam

Steurmann, Esq. The objectors urged the Board to deny plaintiff's application


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                                        3
because the improvements as constructed compromised their privacy and

represented a "self-created" hardship. Mr. Lindstrom testified that

            there's certainly a hardship here with the size and shape
            of the lot. It is undersized. It's required to be 9,000
            square feet. It's 7,854 square feet. It has a shape that
            narrows down to the rear. It had a house on it that was
            raised and the appurtenant structures had to be raised
            with it to accommodate the doorways and the access
            points.

      Lindstrom testified that in connection with the improvements, plaintiffs

relocated the hot tub to a grade-level platform paver pad that sits to the left of

the raised deck in the side yard. Plaintiff testified that he had an electrical

inspection done for the hot tub. Mr. Lindstrom testified that the hot tub is "fairly

well screened by the vegetation around it. I don't think the hot tub has any

negative impact on anything, because it's just down on the ground[.]" Mr.

Lindstrom further testified that the hot tub is in an "appropriate location, even

though it's in the front yard. It's away from any other neighbors." He testified

that he did not believe there would be "any negative impact whatsoever [from

approving the hot tub location and the awning] . . . because they do not affect

any adjoining properties."

      Ultimately, the Board approved the variances related to two pre-existing

non-conforming sheds; lot coverage; the deck; the boundary line fence; and bulk


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                                         4
variance for the non-conforming lot dimensions. However, the Board denied

the variances related to the location of the hot tub and the awning over the deck.

In a February 1, 2017 Resolution, the Board concluded that plaintiffs were not

entitled to consideration of a hardship variance, based on its agreement with the

objectors that any hardship was self-created. Analyzing the application pursuant

to N.J.S.A. 40:55D-70(c)(2), the Board found that plaintiffs failed to establish

the positive criteria for a (c)(2), or "flexible c," variance, which allows for a

variance

            where in an application or appeal relating to a specific
            piece of property the purposes of this act . . . , would be
            advanced by a deviation from the zoning ordinance
            requirements and the benefits of the deviation would
            substantially outweigh any detriment, grant a variance
            to allow departure from regulations pursuant to article
            8 of this act; provided, however, that the fact that a
            proposed use is an inherently beneficial use shall not be
            dispositive of a decision on a variance under this
            subsection[.]

            [Ibid.]

      Approval of a (c)(2) variance is based on the purposes of the zoning

ordinance, not on the advancement of the goals of the property owner. Ten Stary

Dom P'ship v. Mauro, 216 N.J. 16, 30 (2013) (citing Kaufmann v. Planning Bd.

for Warren Twp., 110 N.J. 551, 562-63 (1988)). "Thus, the positive criteria

include proof that the characteristics of the property present an opportunity to

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                                        5
put the property more in conformity with development plans and advance the

purposes of zoning." Ibid. (citing Kaufmann, 110 N.J. at 563-64).

      The Board's February 2017 Resolution found that plaintiffs failed to show

that the relocated hot tub and awning met the positive criteria for a (c)(2)

variance. The Board also concluded that plaintiffs failed to satisfy the negative

criteria concerning the hot tub or the awning. The Board found that the awning

"restricts sufficient air, light and open space on the property" because it "extends

14.8 feet from the easterly side of the home and is 22.3 feet wide." The Board

also concluded that the hot tub "benefits only [plaintiffs] and not the public;

does not create a more desirable visual environment and, therefore, does not

advance the intent and purpose of the Municipal Land Use Law." The Board

further concluded that "the encroachment of the front and side yard setbacks by

the awning/canopy and hot tub will have a detrimental effect on neighboring

properties." The Board further found that awnings and hot tubs are not

commonly found in the neighborhood. As a result, the Board denied plaintiffs'

variance applications for the hot tub and the awning.

      Plaintiffs filed an action in lieu of prerogative writs to challenge the

Board's denial of variance relief for the hot tub and the awning. An action in

lieu of prerogative writs is "a comprehensive safeguard against official wrong,"


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                                         6
Mullen v. Ippolito Corp., 428 N.J. Super. 85, 102 (App. Div. 2012)

(quoting Garrou v. Teaneck Tryon Co., 11 N.J. 294. 302 (1953)), that allows a

citizen to challenge a municipality's action or inaction. On appeal, our standard

of review is the same as that of the trial court that considered the municipal

action. See Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super.

608, 614-15 (App. Div. 2007). Municipal actions are upheld unless arbitrary,

capricious or unreasonable.      Berkeley Square Ass'n, Inc. v. Zoning Bd. of

Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009).

      In their action before the trial court, appellants asserted that the Board

erred in concluding that the hardship creating the need for a variance to permit

the hot tub and awning was "self-created." The trial court agreed, concluding

that appellants' irregular lot size and shape created a hardship as defined by

N.J.S.A. 40:55D-70(c)(1) of the Municipal Land Use Law ("MLUL").

Specifically, the trial court found

            that the shape of this lot, to the extent that it is irregular
            and nonconforming in size as required by the zone, and
            the inability of the property owner to make the lot
            conforming in size as required by the zone, and the
            inability of the property owner to make the lot
            conforming, does create a "hardship" as specified by
            [the MLUL]. The shape of this lot, the location on the
            lagoon, and the dual front yard setbacks create unusual
            circumstances in which compliance with the normal


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                                          7
            dictates of the zoning requirements would satisfy the
            "hardship requirement" for a c(1) variance.

      The trial court also found that the Board erred in finding that the hardship

was "self-created." Nonetheless, the trial court found that plaintiffs did not

sustain their burden of proving the "negative criteria" for a variance. The trial

court noted that "[t]he Board found that hot tubs and canopies of the proposed

size were not commonly found in the neighborhood; that they detracted from the

open space created by setbacks; and were detrimental to the purposes which the

set-back regulations sought to promote." Thus, the trial court affirmed the

Board's denial of plaintiffs' applications for variances for the hot tub and the

awning.

      On this appeal, plaintiffs allege that the trial court erred by, in essence,

usurping the Board's function in its determination that the Board correctly found

that plaintiffs' failure to establish the negative criteria was fatal to plaintiffs'

application. In that regard, plaintiffs assert that once the court found that

plaintiffs established a prima facie entitlement to a (c)(1) hardship that was not

"self-created," the court was required to reverse and remand to allow the Board

to conduct a proper weighing of the positive criteria, established by the (c)(1)

hardship, against the negative criteria. Having reviewed the record and in light

of the applicable law, we are constrained to agree.

                                                                            A-1169-17T2
                                         8
      The statutory authority for the "hardship variance" is found in N.J.S.A .

40:55D-70(c)(1), which states,

               Where: (a) by reason of exceptional narrowness,
               shallowness or shape of a specific piece of property, or
               (b) by reason of exceptional topographic conditions or
               physical features uniquely affecting a specific piece of
               property, or (c) by reason of an extraordinary and
               exceptional situation uniquely affecting a specific piece
               of property or the structures lawfully existing thereon,
               the strict application of any regulation pursuant to
               article 8 of this act1 would result in peculiar and
               exceptional practical difficulties to, or exceptional and
               undue hardship upon, the developer of such property,
               grant, upon an application or an appeal relating to such
               property, a variance from such strict application of such
               regulation so as to relieve such difficulties or hardship.

      The above hardship is known as the "positive criteria" required for a (c)(1)

variance. See Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562,

575 (2005); Nash v. Board of Adjustment of Morris Twp., 96 N.J. 97, 102

(1984).      The applicant bears the burden of establishing that the particular

conditions create a hardship. Ten Stary Dom Partnership v. Mauro, 216 N.J. 16,

29 (2013). Hardship, under (c)(1), "refers solely to the particular physical

condition of the property, not personal hardship to its owner, financial or

otherwise." Jock, 184 N.J. at 590.

      Applicants for a variance under (c)(1) must also satisfy the "negative

criteria:"

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                                           9
            No variance or other relief may be granted under the
            terms of this section, including a variance or other relief
            involving an inherently beneficial use, without a
            showing that such variance or other relief can be
            granted without substantial detriment to the public good
            and will not substantially impair the intent and the
            purpose of the zone plan and zoning ordinance.

            [N.J.S.A. 40:55D-70(d). See also Nash, 96 N.J. at 102.]

A zoning board must balance these negative criteria against the positive criteria.

See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App.

Div. 1963). In construing a previous zoning statute in Yahnel, we described the

balancing of the positive and negative criteria:

            Obviously, any permission for a nonresidential use in a
            residential zone may have some tendency to impair
            residential character, utility or value. But the statutory
            rationale of the function of the board of adjustment is
            that its determinations that there are special reasons for
            a grant of variance and no substantial detriment to the
            public good or impairment of the zone plan, etc., in
            such grant represent a discretionary weighing function
            by the board wherein the zoning benefits from the
            variance are balanced against the zoning harms.

            [Ibid. (emphasis added).]

Similarly, in this case, the negative criteria required for a (c)(1) variance cannot

be analyzed separate and apart from the positive criteria.

      Guided by these principles, we conclude that the Board was unable to

discharge its statutory duty to weigh the positive criteria established by the

                                                                            A-1169-17T2
                                        10
hardship against the negative criteria, because it wrongly concluded that the

hardship was self-created. Thus, the Board did not perform the balancing test

required for a (c)(1) variance. The Board analyzed the positive and negative

criteria only in the context of a (c)(2) variance. A (c)(2) variance merely

required the Board to weigh the detriment to the public good against the extent

to which plaintiffs' variance would further the purposes of the MLUL, and does

not take into account any hardship posed by the property's configuration . See

N.J.S.A. 40:55D-70(c)(2). For that reason, we reverse the trial court's order and

remand the matter to the Board for further proceedings in accordance with this

opinion.

      To the extent any remaining arguments are not addressed in this opinion,

they are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Reversed and remanded. We do not retain jurisdiction.




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